Rupa Marya v. Warner Chappell Music Inc

Filing 69

TRANSCRIPT for proceedings held on October 7, 2013; a.m. session. Court Reporter: Mary R. Rickey, [e-mail]. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may also be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 11/1/2013. Redacted Transcript Deadline set for 11/11/2013. Release of Transcript Restriction set for 1/9/2014. (Rickey, Mary R.)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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THE HONORABLE GEORGE H. KING, CHIEF U.S. DISTRICT JUDGE

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RUPA MARYA, ET AL.,

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PLAINTIFFS, )
VS.
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WARNER CHAPPELL MUSIC, INC., )
ET AL.,
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DEFENDANTS. )
______________________________)

NO. CV 13-4460-GHK

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REPORTER'S TRANSCRIPT OF PROCEEDINGS

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LOS ANGELES, CALIFORNIA

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MONDAY, OCTOBER 7, 2013; A.M. SESSION

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MOTIONS HEARING

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MARY R. RICKEY, CSR, RPR
OFFICIAL COURT REPORTER
255 E. TEMPLE ST., RM 181-G
LOS ANGELES, CA 90012

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APPEARANCES OF COUNSEL:

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ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED:

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WOLF HALDENSTEIN ADLER FREEMAN & HERZ, LLP
BY: BETSY C. MANIFOLD
ATTORNEY AT LAW
SYMPHONY TOWERS
750 B STREET, SUITE 2770
SAN DIEGO, CA 92101

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WOLF HALDENSTEIN ADLER FREEMAN & HERZ, LLP
BY: MARK C. RIFKIN
ATTORNEY AT LAW
270 MADISON AVENUE
NEW YORK, NEW YORK 10016

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RANDALL S. NEWMAN, P.C.
BY: RANDALL S. NEWMAN
ATTORNEY AT LAW
37 WALL STREET
PENTHOUSE D
NEW YORK, NY 10005

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HUNT ORTMANN
BY: KATHERINE J. ODENBREIT
ATTORNEY AT LAW
18301 VON KARMAN AVENUE
SUITE 330
IRVINE, CA 92612

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HUNT ORTMANN
BY: TINA B. NIEVES
ATTORNEY AT LAW
301 N. LAKE AVENUE, 7TH FLOOR
PASADENA, CA 91101

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NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

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APPEARANCES OF COUNSEL:

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FOR DEFENDANTS:
MUNGER, TOLLES & OLSON, LLP
BY: KELLY M. KLAUS
ATTORNEY AT LAW
355 SOUTH GRAND AVENUE
35TH FLOOR
LOS ANGELES, CA 90071

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MUNGER, TOLLES & OLSON, LLP
BY: ADAM I. KAPLAN
ATTORNEY AT LAW
355 SOUTH GRAND AVENUE
35TH FLOOR
LOS ANGELES, CA 90071

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NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

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I N D E X

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PROCEEDINGS

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DISCUSSION RE STATUTE OF LIMITATIONS

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DISCUSSION RE ATTTORNEYS' FEES

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DISCUSSION RE STATUTE OF LIMITATIONS

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DISCUSSION RE STATE LAW CLAIMS, DECLARATORY RELIEF

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DISCUSSION RE BIFURCATION

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DISCUSSION RE JURY TRIAL

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DISCUSSION RE DEPOSIT COPY

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PLAINTIFFS' COUNSEL DIRECTS COURT TO PARAGRAPHS

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COURT ORDERS FILING BY PLAINTIFFS

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NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

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LOS ANGELES, CALIFORNIA; MONDAY, OCTOBER 7, 2013

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A.M. SESSION

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--OOO--

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THE CLERK:

PLEASE REMAIN SEATED AND COME TO

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ORDER.

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SESSION, THE HONORABLE GEORGE H. KING, CHIEF JUDGE,

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PRESIDING.

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THIS UNITED STATES DISTRICT COURT IS NOW IN

CALLING ITEM 1 ON THE COURT'S CALENDAR,
CIVIL 13-4460, RUPA MARYA, ET AL., VERSUS WARNER CHAPPELL
MUSIC, INC., ET AL.
COUNSEL, WOULD YOU PLEASE STATE YOUR APPEARANCES
FOR THE RECORD.
GOOD MORNING.

MR. RIFKIN:

MARK RIFKIN OF WOLF

HALDENSTEIN ON BEHALF OF THE PLAINTIFFS.

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THE COURT:

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MS. MANIFOLD:

YES, GOOD MORNING.
GOOD MORNING, YOUR HONOR.

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BETSY MANIFOLD, ON BEHALF OF THE PLAINTIFFS, ALSO FROM

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WOLF HALDENSTEIN.

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THE COURT:

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MS. ODENBREIT:

YES, GOOD MORNING.
GOOD MORNING, YOUR HONOR.

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KATHRINE ODENBREIT WITH HUNT ORTMANN ON BEHALF OF THE

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PLAINTIFFS.

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THE COURT:

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MR. NEWMAN:

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GOOD MORNING.
GOOD MORNING, YOUR HONOR.

RANDALL NEWMAN, RANDALL NEWMAN P.C., ON BEHALF OF THE

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

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PLAINTIFFS.

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THE COURT:

YES, GOOD MORNING, COUNSEL.

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MR. KLAUS:

GOOD MORNING, YOUR HONOR.

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KELLY KLAUS AND ADAM KAPLAN FROM MUNGER TOLLES AND OLSON

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FOR THE DEFENDANTS.

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THE COURT:

YES, GOOD MORNING, COUNSEL.

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ALL RIGHT.

COUNSEL, WE'RE HERE TO HEAR VARIOUS

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MOTIONS THAT HAVE BEEN PRESENTED TO ME.

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I HAVE GIVEN THIS A LOT OF THOUGHT, FROM NOT

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ONLY A SUBSTANTIVE STANDPOINT, BUT ALSO FROM A PROPER

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PROCEDURAL STANDPOINT.

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LET ME FIRST TALK TO THE PLAINTIFFS' SIDE ABOUT

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THE STATUTE OF LIMITATIONS ISSUE AS IT GOES TO THE

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DECLARATORY RELIEF PART OF THE ACTION ONLY.

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AND THAT'S MR. RIFKIN.

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MR. RIFKIN:

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RIGHT?

YES, YOUR HONOR.

GOOD MORNING

AGAIN.

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THE COURT:

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ALL RIGHT, WELL, COUNSEL --

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MR. RIFKIN:

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IT SOUNDS TO ME THAT YOU HAVE

QUESTIONS.

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THE COURT:

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MR. RIFKIN:

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THE COURT:

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GOOD MORNING.

DON'T LAUNCH INTO ANYTHING.
OKAY.
I WILL ASK YOU SOME QUESTIONS, AND

THEN WE CAN PERHAPS FOCUS OUR DISCUSSION THIS MORNING.

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

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WHAT YOU ARE SAYING IS FOR THE DECLARATORY

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RELIEF PART OF THIS ACTION THERE IS NO SPECIFIC STATUTE OF

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LIMITATIONS UNDER THE DECLARATORY RELIEF STATUTE.

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ENOUGH.

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MR. RIFKIN:

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THE COURT:

TRUE

CORRECT.
AND YOU SAY BECAUSE OF THAT ABSENCE,

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WHAT WE OUGHT TO DO IS THEN GO AHEAD AND, AS A MATTER OF

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FIRST PREFERENCE, BORROW FROM THE STATE LAW THAT IS

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PERHAPS MOST ANALOGOUS HERE.

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AND YOU RELY UPON THE NORTH

STAR STEEL COMPANY CASE, A 1995 SUPREME COURT CASE.

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CORRECT SO FAR?

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MR. RIFKIN:

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THE COURT:

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CORRECT.
MY CONCERN WITH THAT ARGUMENT IS AS

FOLLOWS.
IN THAT CASE, YOU ARE TALKING ABOUT THE WARN

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ACT, AND THE WARN ACT DID NOT HAVE AN EXPLICIT STATUTE OF

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LIMITATIONS.

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TO AN EQUIVALENT STATE LAW.

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SO YOU GO INTO THE NORMAL DEFAULT OF LOOKING
FAIR ENOUGH.

IN THIS CASE, YOUR ACTION, AS FAR AS DECLARATORY

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RELIEF IS CONCERNED, IS NOT REALLY A SUBSTANTIVE CLAIM.

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IT'S A PROCEDURAL DEVICE FOR THE CLARIFICATION OF RIGHTS

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WHERE THERE IS AN ACTUAL CASE IN CONTROVERSY.

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AND WHAT WE HAVE HERE IS YOU HAVE CONTROVERSY

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WITH RESPECT TO, ULTIMATELY, THE VALIDITY OF THE

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COPYRIGHTS AS CLAIMED BY THE DEFENDANT IN THE SONG,

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

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WHETHER IT'S LYRICS AND THE MELODY, WHATEVER.

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NEED TO GET INTO ALL OF THAT TODAY.

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MR. RIFKIN:

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THE COURT:

WE DON'T

RIGHT.
BUT IN ORDER TO DO THAT, WE HAVE TO

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INTERPRET AND APPLY VARIOUS ASPECTS OF COPYRIGHT LAW THAT

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GO TO THE VARIOUS CLAIMS THAT YOU HAVE THAT UNDERLIE YOUR

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ULTIMATE ARGUMENT THAT THERE IS NO VALID COPYRIGHT AND

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THEY ARE CLAIMING SOMETHING TO WHICH THEY HAVE NO

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COPYRIGHT.

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MR. RIFKIN:
NOT HAVE.

THEY ARE CLAIMING A RIGHT THEY DO

CORRECT.
THE COURT:

IN ORDER TO DO SO, IT SEEMS TO ME,

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THEN, WHAT YOUR DECLARATORY RELIEF ASPECT OF YOUR CASE IS

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REALLY LOOKING TO WOULD REQUIRE US TO DO ALL OF THOSE

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THINGS, INTERPRET, APPLY COPYRIGHT LAW.

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SO, IN EFFECT, IF WE WERE TO LOOK AT THIS CASE

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AS EFFECTIVELY WHAT THE COERCIVE CLAIMS MIGHT BE, HAD THIS

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NOT BEEN A DECLARATORY RELIEF ACTION, IT WOULD CLEARLY BE

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SOMETHING THAT WOULD ARISE FROM THE COPYRIGHT ACT; AND

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THEREFORE, AS A MATTER OF FIRST INSTANCE, WE DON'T NEED TO

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BORROW ANYTHING FROM THE STATE COURT.

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WE HAVE A THREE-YEAR STATUTE OF LIMITATIONS

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UNDER THE COPYRIGHT ACT; AND THEREFORE, WE DON'T EVEN TAKE

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THAT FIRST STEP PERHAPS SUGGESTED BY NORTH STAR STEEL,

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WHERE THERE TRULY IS NO STATUTE OF LIMITATIONS FOR ANY OF

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

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THE SUBSTANTIVE CLAIMS THERE.
THAT APPEARS TO BE WHAT THE STATUS OF THE LAW IS

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WITH RESPECT TO, LET'S SAY, A VERY RELATED ISSUE OF

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DISPUTES OVER CO-OWNERSHIP OF A COPYRIGHT.

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THERE'S SEVERAL OF THOSE CASES -- ONE FROM THE

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NINTH CIRCUIT, ONE FROM THE SECOND CIRCUIT, ONE FROM THE

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FIRST CIRCUIT -- FOLLOWING THAT ANALYSIS AND APPLYING THE

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THREE-YEAR STATUTE OF LIMITATIONS OF THE COPYRIGHT ACT.

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SO HAVING SAID THAT, MY QUESTION TO YOU IS WHY

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SHOULDN'T I FOLLOW THOSE CASES AND APPLY THAT REASONING

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AND CONCLUDE THAT YOUR DECLARATORY RELIEF IS GOVERNED BY

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THE THREE-YEAR COPYRIGHT STATUTE OF LIMITATIONS?

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MR. RIFKIN:

YOUR HONOR, I THINK THE IMPORTANT

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CONCEPT TO UNDERSTAND IN ANALYZING THAT QUESTION IS THE

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DISTINCTION BETWEEN JURISDICTION, FEDERAL JURISDICTION,

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FOR A CLAIM THAT -- AND I'LL PUT THIS IN QUOTES -- "ARISES

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UNDER THE COPYRIGHT ACT VERSUS A CLAIM THAT IS BROUGHT

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UNDER THE COPYRIGHT ACT."

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AND IN A NUMBER OF THE CASES THAT THE DEFENDANTS

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HAVE CITED, BOTH IN THE STATUTE OF LIMITATIONS CONTEXT AND

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ALSO IN THE PREEMPTION CONTEXT, ARE CASES THAT ADDRESS

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JURISDICTION RATHER THAN THE APPLICATION OF THE LAW.

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AND THE COURTS INTERPRET THAT PHRASE "ARISES

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UNDER" FAR MORE BROADLY FOR DETERMINING JURISDICTION THAN

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THEY DO FOR DETERMINING WHETHER A CLAIM IS PREEMPTED OR

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

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WHETHER A PARTICULAR STATUTE OF LIMITATIONS SHOULD APPLY.

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SO GIVEN WHAT WE SAY AND GIVEN WHAT I THINK THE

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COURT RECOGNIZES IS THE STATE OF THE LAW, WHICH IS THAT

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OUR TWO FEDERAL CLAIMS UNDER THE DECLARATORY JUDGMENT ACT

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HAVE NO STATUTE OF LIMITATIONS UNDER THEM, THE QUESTION

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THAT WE THINK IS RELEVANT TO THE STATUTE OF LIMITATIONS

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INQUIRY IS, IN THE FIRST INSTANCE, WOULD APPLYING A STATE

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LAW STATUTE OF LIMITATIONS BE REPUGNANT TO ANY PURPOSE

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SERVED, EITHER BY THE DECLARATORY JUDGMENT ACT OR EVEN,

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ARGUABLY, BY THE COPYRIGHT ACT?

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AND ON THAT, THE DEFENDANTS HAVE OFFERED NO
ARGUMENT.

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THE COURT:

I DON'T WANT TO GET TO THAT POINT

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YET BECAUSE WE DON'T GET THERE UNLESS THERE IS NO

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APPLICABLE STATUTE OF LIMITATIONS.

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THE MERE FACT THAT THE DECLARATORY RELIEF ACT OR

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JUDGMENT ACT DOES NOT ITSELF CONTAIN A STATUTE OF

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LIMITATIONS, IN MY JUDGMENT, DOES NOT END THE INQUIRY AND

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CAUSE US TO JUMP TO BORROWING.

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I WANT TO KNOW FIRST WHETHER OR NOT MY

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ASSERTIONS -- YOU AGREE WITH IT; IF YOU DON'T AGREE WITH

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IT, WHY YOU THINK THAT THAT IS NOT CORRECT OTHER THAN WHAT

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YOU SAY.

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I AGREE WITH YOU THAT THERE IS A DISTINCTION
BETWEEN JURISDICTION AND LATER ON, IF WE GET TO IT,

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

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PREEMPTION.

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MERCHANT VERSUS LEVY CASE FROM THE SECOND CIRCUIT AND

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PERHAPS ONE OF THE OTHERS, DIDN'T LOOK TO WHETHER OR NOT

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IT WAS JUST ARISING UNDER FOR JURISDICTION PURPOSES, BUT

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ALSO LOOKED AT WHETHER OR NOT, IN EFFECT, THE DECLARATORY

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RELIEF CALLS FOR AN INTERPRETATION OR APPLICATION OF

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COPYRIGHT LAW OR NOT.

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BUT IN THIS CASE, THE CASES, LIKE THE

BECAUSE IF, LET'S SAY, IN THOSE CASES OF
CO-OWNERSHIP, IT ONLY DEPENDED ON A PIECE OF PAPER, IT WAS

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JUST A CONTRACT, THAT'S ALL.

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ACT AS TO OWNERSHIP OTHER THAN WHAT'S IN THIS CONTRACT.

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THE COURT SAID, WELL, MAYBE THAT'S NOT A CASE

NO REFERENCE TO COPYRIGHT

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WHERE WE WOULD APPLY THE THREE-YEAR STATUTE OF

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LIMITATIONS, BUT WE WOULD LOOK TO STATE CONTRACT LAW.

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SO I'M SAYING THE SAME THING HERE.

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MR. RIFKIN:

AND I'M SORRY.

THE ANSWER -- I

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THINK THE ANSWER IS SUGGESTED BY THE NINTH CIRCUIT'S

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DECISION IN LEVALD VERSUS PALM DESERT WHERE THE COURT

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APPLIED A TWO-YEAR CALIFORNIA STATUTE OF LIMITATIONS FOR

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PERSONAL INJURY CLAIMS THAT WERE BROUGHT UNDER SECTION

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1983 UNDER THE FEDERAL STATUTE.

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AND WHAT THE COURT THERE SAID IS IF A CLAIM FOR

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DECLARATORY RELIEF THAT WAS A DECLARATORY JUDGMENT ACTION,

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JUST LIKE OUR ACTION IS A DECLARATORY JUDGMENT ACTION, IF

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A CLAIM FOR DECLARATORY RELIEF COULD HAVE BEEN RESOLVED

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

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THROUGH ANOTHER FORM OF ACTION -- IN OTHER WORDS, LOOK TO

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THE SUBSTANCE OF THE CLAIM.

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IF THE CLAIM COULD HAVE BEEN RESOLVED THROUGH

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ANOTHER FORM OF ACTION WHICH HAS A SPECIFIC LIMITATIONS

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PERIOD, THEN THAT SPECIFIC LIMITATIONS PERIOD WILL GOVERN.

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AND IN THAT CASE, THE COURT APPLIED A TWO-YEAR

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STATUTE OF LIMITATIONS UNDER CALIFORNIA LAW FOR PERSONAL

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INJURY CLAIMS.

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THAT'S TOTALLY DIFFERENT.

THE COURT:
MR. RIFKIN:

WELL, I DON'T THINK SO, YOUR HONOR,

FOR ONE REASON.
I THINK SO, BECAUSE 1983 DOES NOT,

THE COURT:

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ITSELF, HAVE A STATUTE OF LIMITATIONS, AND HENCE THE

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SUPREME COURT SAID WE LOOK TO THE GENERAL RESIDUAL STATE

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LAW STATUTE OF LIMITATIONS.

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THE OTHER PART THAT YOU SAID, I THINK, IS REALLY

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AN ARGUMENT AGAINST WHAT YOU HAVE TO SAY, YOUR POSITION,

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BECAUSE WHEN -- YOU QUOTED THE CIRCUIT AS SAYING YOU LOOK

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TO WHAT IS REALLY NECESSARY TO RESOLVE THAT ISSUE.

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SO IN THIS CASE, HAD YOU NOT BROUGHT DECLARATORY

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RELIEF AND YOU JUST DIDN'T PAY, YOU SAY I THINK THIS IS

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WORTHLESS; SO WE'RE GOING TO USE IT IN OUR FILM, BUT WE'RE

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NOT PAYING YOU A DIME.

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WOULD BE RESOLVED.

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THAT'S EFFECTIVELY HOW ELSE IT

THEY WOULD SUE YOU FOR INFRINGEMENT.

MR. RIFKIN:

RIGHT.

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

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THE COURT:

YOU DON'T

EVEN HAVE A VALID COPYRIGHT.
SO THAT'S HOW IT'S GOING TO BE RESOLVED THERE.

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YOU SAY NO INFRINGEMENT.

THAT WOULD CLEARLY BE A THREE-YEAR STATUTE.

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MR. RIFKIN:

WELL, YOUR HONOR, LET ME TRY TO

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ANSWER THAT DIRECTLY BECAUSE I THINK THAT'S EXACTLY THE

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ISSUE.

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IF THOSE HAD BEEN THE FACTS, IF THE PLAINTIFFS
HERE SAID WE'RE NOT GOING TO SIGN YOUR LICENSE, WE'RE JUST

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GOING TO GO AHEAD AND USE THE SONG; AND WARNER THEN

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BROUGHT A COPYRIGHT INFRINGEMENT ACTION, THERE IS NO

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QUESTION THAT THAT COPYRIGHT INFRINGEMENT ACTION WOULD BE

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SUBJECT TO THE STATUTE OF LIMITATIONS SPECIFIED BY THE

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COPYRIGHT ACT, THE THREE-YEAR STATUTE OF LIMITATIONS.

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THE DEFENSE TO THAT CLAIM MIGHT WELL BE

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INVALIDITY OF THE COPYRIGHT, YOU DON'T HAVE A COPYRIGHT --

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WHATEVER THE DEFENSE MAY BE.

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YOU DON'T OWN THE COPYRIGHT TO THE SONG; SO YOUR CLAIM HAS

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NO MERIT.

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WE WOULD, IN THAT CASE, SAY

BUT IN THE FIRST INSTANCE, THE QUESTION IS

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WHETHER THE CLAIM FOR INFRINGEMENT WOULD HAVE BEEN TIMELY,

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NOT WHETHER THE DEFENSE WOULD HAVE BEEN UNTIMELY.

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OTHER WORDS, WHAT'S UNUSUAL ABOUT THIS CASE IS IT'S

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UPSIDE-DOWN FROM THE TYPICAL CASE.

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THE MERCHANT CASE, FOR EXAMPLE.

IN

IT'S UPSIDE-DOWN FROM

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THE COURT:

I UNDERSTAND THAT.

BUT -- NO, IN

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TERMS OF THE MERCHANT CASE, IT WAS ALSO DECLARATORY

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RELIEF.

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MR. RIFKIN:

OWNERSHIP IN THE SAME COPYRIGHT.

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THE COURT:

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MR. RIFKIN:

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CORRECT.
AND WE DON'T HAVE THAT SITUATION

HERE.

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YES, BUT THERE, TWO PARTIES CLAIMED

YOUR HONOR, I THINK THE MORE CLOSE ANALOGY IS A
DIFFERENT ONE.

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LET ME SUGGEST --

THE COURT:

BEFORE YOU DO THAT, GO BACK AND READ

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TO ME AGAIN EXACTLY WHAT YOU READ TO ME FROM THE NINTH

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CIRCUIT, AND I'LL TELL YOU IF THAT'S THE PART THAT I WANT

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TO QUESTION YOU ON.
I WILL.

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MR. RIFKIN:

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IN LEVALD, WHAT THE COURT SAID WAS THAT IF A

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CLAIM FOR DECLARATORY RELIEF COULD HAVE BEEN RESOLVED

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THROUGH ANOTHER FORM OF ACTION WHICH HAS A SPECIFIC

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LIMITATIONS PERIOD --

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THE COURT:

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MR. RIFKIN:

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THE COURT:

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OKAY.

STOP RIGHT THERE.

YES.
STOP RIGHT THERE.

ISN'T THAT WHAT I

JUST SAID?

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MR. RIFKIN:

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THE COURT:

NO.
THIS DECLARATORY RELIEF -- WAIT.

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

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FIRST OF ALL, COUNSEL, I'M GOING TO GIVE YOU THE

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COURTESY OF NOT INTERRUPTING YOU UNLESS I NEED TO QUESTION

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YOU.

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YOU DO NOT INTERRUPT ME BY SAYING "YES" OR "NO."

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HAVE THAT OPPORTUNITY TO DO SO.

AND I WANT YOU TO UNDERSTAND THAT WHEN I'M TALKING,

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YOU WILL

I DON'T KNOW BEFORE WHICH JUDGES YOU HAVE

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APPEARED, BUT IF YOU'RE GOING TO APPEAR BEFORE ME, YOU

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BETTER UNDERSTAND THE GROUND RULES OF THIS COURTROOM.

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DO YOU UNDERSTAND ME?

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MR. RIFKIN:
APOLOGIZE.

YES, I DO, YOUR HONOR.

AND I

I THOUGHT YOU WERE FINISHED WITH THE QUESTION.

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THE COURT:

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MR. RIFKIN:

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THE COURT:

YOU DON'T THINK.

LISTEN.

YES, YOUR HONOR.
ALL RIGHT.

SO WHAT I SAID TO YOU

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WAS IF YOU TAKE A LOOK AT THAT QUOTE, IF THE DECLARATORY

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RELIEF ACTION COULD HAVE BEEN RESOLVED BY ANOTHER WAY

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WHERE THERE IS A STATUTE OF LIMITATIONS, WE APPLY THAT.

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HERE, IN A DECLARATORY RELIEF ACTION, WE

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TYPICALLY LOOK TO WHAT THE UNDERLYING COERCIVE CLAIM COULD

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HAVE BEEN; IN OTHER WORDS, THAT EXACT UPSIDE-DOWNNESS THAT

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YOU WERE TALKING ABOUT, WHICH IS AN INFRINGEMENT ACTION BY

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THEM, AND YOU ASSERTING NO, NO INFRINGEMENT.

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CASE IS CLEARLY A THREE-YEAR STATUTE OF LIMITATIONS.

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YOU SAY THAT

MY QUESTION IS WHY DOESN'T THAT SUPPORT THE
THREE-YEAR STATUTE?

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

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MR. RIFKIN:

AND, YOUR HONOR, BECAUSE THE

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COPYRIGHT ACT DOES NOT PROVIDE A MECHANISM THROUGH WHICH

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SOMEONE WHO DISPUTES THE EXISTENCE OF A COPYRIGHT CAN

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AFFIRMATIVELY BRING THAT CLAIM, THERE IS NO RIGHT UNDER

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THE COPYRIGHT ACT THAT SOMEONE IN THE PLAINTIFF'S POSITION

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CAN ENFORCE TO DETERMINE WHETHER A CLAIMANT, IN FACT, OWNS

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A COPYRIGHT, OTHER THAN TO DO WHAT WE DID, WHICH IS TO

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BRING A DECLARATORY JUDGMENT ACTION OR TO PROCEED AND WAIT

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TO BE SUED FOR INFRINGEMENT.

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A PLAINTIFF DOES NOT HAVE THE RIGHT TO BRING A

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CLAIM UNDER THE COPYRIGHT ACT TO DETERMINE THE SCOPE OF

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SOMEONE ELSE'S COPYRIGHT.

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THE COPYRIGHT ACT.

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THE COURT:

THAT RIGHT DOES NOT EXIST UNDER

IS THERE A RIGHT THAT COULD HAVE

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BEEN ASSERTED OTHER THAN AS A DECLARATORY RELIEF ACTION IN

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MERCHANT?

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MR. RIFKIN:

IN MERCHANT, AS I UNDERSTAND IT,

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THE CLAIM HAD TO DO WITH DISPUTED OWNERSHIP TO THE SONG

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"WHY DO FOOLS FALL IN LOVE?"

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THAT THE SCOPE OF THE COPYRIGHT WAS NOT AN ISSUE.

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A QUESTION OF CO-AUTHORSHIP OF THE COPYRIGHT.

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AND IT'S MY UNDERSTANDING
IT WAS

AS I UNDERSTAND IT, THERE IS NO OTHER SOURCE OF

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LAW UNDER WHICH SUCH A CLAIM COULD HAVE BEEN BROUGHT

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EXCEPT BY THE DECLARATORY JUDGMENT.

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COPYRIGHT ACT ALLOWS A CLAIM FOR DISPUTED AUTHORSHIP TO BE

I DO NOT BELIEVE A

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RESOLVED UNDER, FOR EXAMPLE, SECTION 106 OF THE COPYRIGHT

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ACT.

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SO I DON'T THINK THAT SUCH A CLAIM COULD HAVE

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BEEN BROUGHT DIRECTLY EXCEPT BY DECLARATORY JUDGMENT OR

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PERHAPS UNDER SOME SOURCE OF STATE LAW WHERE THE PLAINTIFF

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HAS A CLAIM, FOR EXAMPLE, BREACH OF CONTRACT, JUST LIKE WE

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THINK WE HAVE CLAIMS UNDER CALIFORNIA STATE LAW FOR THE

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DEFENDANTS' ALLEGED MISUSE OR MISASSERTION, I SHOULD SAY,

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MISASSERTION OF COPYRIGHT.

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BUT WE COULD NOT HAVE BROUGHT COUNT 1 UNDER

11

SECTION WHATEVER, WHETHER IT HAD BEEN 501 OR ANY OTHER

12

SECTION OF THE COPYRIGHT ACT.

13

AN ACTION UNDER THE COPYRIGHT ACT, WHICH IS WHY I THINK

14

THE LEVALD CASE IS INSTRUCTIVE.

15

WE COULD NOT HAVE BROUGHT

OUR ONLY EXISTING REMEDY AS AN AFFIRMATIVE

16

CLAIM, IF NOT A DECLARATORY JUDGMENT, WOULD HAVE BEEN THE

17

CLAIMS WE ASSERTED UNDER STATE LAW, WHICH IS WHY I THINK

18

THE STATE LAW IS THE APPROPRIATE ANALOGY.

19

THE COURT:

20

CIRCUIT IN MERCHANT.

21
22

MR. RIFKIN:

25

NO.

I THINK THE SECOND CIRCUIT IN

MERCHANT HAD A TOTALLY DIFFERENT CASE IN FRONT OF IT.

23
24

SO YOU DISAGREE WITH THE SECOND

THE COURT:

HOW DIFFERENT?

YOU SAID THE SAME

THING.
YOU SAID, IN THAT CASE, THEY ALSO COULD NOT HAVE

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

18
1

BROUGHT ANYTHING UNDER THE COPYRIGHT ACT AS A DISPUTE

2

BETWEEN CO-OWNERS.

3

INFRINGEMENT ACTION BECAUSE CO-OWNERS CANNOT POSSIBLY BE

4

SAID TO INFRINGE EACH OTHER.

5

YOU CERTAINLY CAN'T HAVE AN

SO THERE THEY RELIED ON DECLARATORY RELIEF.

6

THERE THE COURT APPLIED THE ANALYSIS THAT I'M ASSERTING

7

HERE, TO SAY THAT THE THREE-YEAR STATUTE OF LIMITATIONS

8

APPLIED.

9

SO EITHER YOU DISAGREE WITH MERCHANT OR, IF

10

MERCHANT IS CORRECT, THEN YOUR DECLARATORY RELIEF CLAIMS

11

MUST BE THREE YEARS.

12

MR. RIFKIN:

NO.

I THINK THE REASON THAT

13

MERCHANT IS DIFFERENT FROM OUR CASE IS BECAUSE THE

14

COPYRIGHT ACT ADDRESSES THIS VERY QUESTION.

15

WORDS, THERE IS A PROVISION OF THE COPYRIGHT ACT TO

16

RESOLVE CLAIMS OF OWNERSHIP.

IN OTHER

THERE IS NOT A REMEDY PROVIDED FOR THAT.

17

THERE

18

IS NOT A MECHANISM UNDER WHICH THE ANSWER IS DETERMINED,

19

BUT THERE'S NOT EVEN A PARALLEL SECTION IN THE COPYRIGHT

20

ACT.

21

THERE'S NO RIGHT -- FOR EXAMPLE, THERE'S NO

22

RIGHT UNDER SECTION 106 TO BE FREE FROM THE WRONGFUL CLAIM

23

OF COPYRIGHT.

24
25

NO ONE HAS ANY RIGHTS UNDER THE COPYRIGHT ACT NO
MATTER HOW THEY CAN BE ENFORCED.

NO ONE HAS ANY RIGHTS

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

19
1

UNDER THE COPYRIGHT ACT TO BE FREE FROM THE UNLAWFUL

2

ASSERTION OF A COPYRIGHT, BUT THE COPYRIGHT ACT DOES

3

PROVIDE RIGHTS TO CO-AUTHORS.

4

AND SO NO MATTER WHAT FORM THE ACTION TAKES, I

5

THINK THE DIFFERENCE IS THERE IS NO LAW, THERE IS NO

6

REMEDY, THERE IS NO RIGHT THAT THE COPYRIGHT ACT PROVIDES

7

THAT ALLOWS THE COURT TO RESOLVE THE ANSWER.

8
9

AND I THINK IT MAKES SENSE, THEN, TO LOOK AT THE
COPYRIGHT ACT IN THE MERCHANT CASE.

I THINK IT MAKES

10

SENSE FOR THE COURT TO SAY WELL, IF THE QUESTION IS THE

11

RIGHT OF CO-OWNERSHIP UNDER THE COPYRIGHT ACT, WE

12

UNDERSTAND THAT.

13

BUT HERE, THERE IS NO PARALLEL RIGHT.

SO THAT'S

14

WHY I SUGGESTED A MORE APPROPRIATE ANALOGY AND A BETTER

15

WAY TO THINK OF THIS IS TO ASK THE FOLLOWING QUESTION.

16

IF WARNER HAD DECIDED TO SUE BIRCH TREE

17

LIMITED -- THAT'S THE COMPANY THAT THEY BOUGHT TO ACQUIRE

18

THE RIGHTS TO THE SONG.

19

IF SOMETIME AFTER THAT TRANSACTION, WARNER HAD

20

DECIDED THAT THEY DID NOT ACQUIRE THE COPYRIGHTS TO "HAPPY

21

BIRTHDAY" WHEN THEY BOUGHT BIRCH TREE, LIMITED, IF THEY

22

HAD BROUGHT AN ACTION -- IF WARNER HAD THEN BROUGHT AN

23

ACTION AGAINST BIRCH TREE, EITHER FOR BREACH OF CONTRACT

24

BECAUSE THE SALE DID NOT DELIVER THE RIGHTS TO THE SONG

25

THAT HAD BEEN PROMISED OR FOR MISREPRESENTATION BECAUSE

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

20
1

THERE WAS A REPRESENTATION OR A WARRANTY, AN AGREEMENT OF

2

SALE THAT BIRCH TREE OWNED THE RIGHT TO THE SONG, OR

3

WHATEVER THE CASE MAY BE, IF WE TRY TO TAKE OUT THE FACT

4

THAT THIS IS A LICENSEE WHO IS SUING A LICENSOR SO THAT WE

5

CAN SEE THE ISSUE CLEARLY, I DON'T THINK ANYONE WOULD

6

SUGGEST THAT WARNER'S CLAIM AGAINST BIRCH TREE WOULD BE

7

SUBJECT TO THE THREE-YEAR LIMITATIONS PERIOD FOR COPYRIGHT

8

INFRINGEMENT BECAUSE, CLEARLY, THAT CLAIM IS NOT A CLAIM

9

FOR COPYRIGHT INFRINGEMENT.

10

AND, RESPECTFULLY, I THINK THAT'S A CLOSER

11

ANALOGY TO WHAT THIS CLAIM IS IN THE ONLY WAY THAT THESE

12

PLAINTIFFS CAN AFFIRMATIVELY ASSERT IT.

13

THE ONLY WAY THEY CAN ASSERT A CLAIM TO BE FREE

14

FROM THE MISUSE OF A COPYRIGHT IS TO BRING EITHER A

15

DECLARATORY JUDGMENT ACTION TO DETERMINE THE SCOPE OF THAT

16

DISPUTED RIGHT OR TO BRING STATE LAW CLAIMS, WHICH THEY'VE

17

DONE.

18

SO THERE'S NO REMEDY PROVIDED FOR, THERE'S NO

19

RIGHT PROVIDED FOR IN THE COPYRIGHT ACT, AND THERE'S NO

20

CAUSE OF ACTION PROVIDED FOR IN THE COPYRIGHT ACT, WHICH

21

IS WHY WE THINK, ANALYTICALLY, THIS CASE IS DIFFERENT THAN

22

THE MERCHANT CASE, WHERE THE COPYRIGHT ACT DOES ADDRESS

23

QUESTIONS OF CO-AUTHORSHIP.

24
25

AND WE THINK THAT MAKES ALL THE DIFFERENCE IN
THE WORLD.

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

21
1

THE COURT:

WELL, I THINK THAT IS A FALSE

2

DIFFERENTIATION BECAUSE, WHILE IT IS TRUE THE COPYRIGHT

3

ACT MAY ADDRESS CO-OWNERSHIP, THE COPYRIGHT ACT ADDRESSES

4

VALIDITY AS TO WHAT IS COPYRIGHTABLE.

5

DOMAIN?

6

IT TO GET COPYRIGHT PROTECTION?

7

IS IT IN THE PUBLIC

IS IT SOMETHING THAT IS SUFFICIENTLY ORIGINAL FOR
THESE ARE ALSO ADDRESSED.

I SEE NO DIFFERENCE IN THAT PARALLEL.

IF YOU

8

ARE TELLING ME THESE ARE NOT THE SAME FACTS, I HAVE TO

9

AGREE WITH YOU, THEY ARE NOT THE SAME FACTS.

BUT

10

CONCEPTUALLY, I DON'T SEE A DIFFERENCE, AND YOU HAVE NOT

11

CONVINCED ME OTHERWISE.

12

IF YOU HAVE ANYTHING ELSE YOU WANT TO ADD, GO

13

AHEAD.

14

WE'LL MOVE ON.

15

I'M GOING TO HEAR FROM THE OTHER SIDE, AND THEN

MR. RIFKIN:

ON THIS QUESTION, YOUR HONOR, THE

16

ONLY OTHER THING THAT I WOULD SAY, OF COURSE, IS WE HAVE

17

RAISED THE ISSUE OF THE DISCOVERY RULE.

18

IT.

19

WE'VE BRIEFED

AND WE THINK HERE, EVEN IF THE COURT WERE GOING

20

TO APPLY A THREE-YEAR STATUTE OF LIMITATIONS TO ANY OF

21

THESE CLAIMS, IT'S NOT SO SIMPLE AS SAYING THE THREE YEARS

22

BEGIN TO RUN FROM WHEN THE PLAINTIFF SIGNED THEIR CONTRACT

23

BECAUSE IN FAIRNESS TO THE PLAINTIFFS THE COURTS THAT HAVE

24

APPLIED THE THREE-YEAR STATUTE OF LIMITATIONS RECOGNIZE

25

THAT THERE IS A LEGITIMATE QUESTION ABOUT WHEN THE

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

22
1

AGGRIEVED PARTY CAN DETERMINE, CAN DECIDE WHETHER THERE'S

2

BEEN A REPUDIATION OF RIGHTS.

3

SO, FOR EXAMPLE, WE CITE THE WELLES CASE.

THIS

4

IS ORSON WELLES' DAUGHTER, WHO SUED TURNER ENTERTAINMENT

5

OVER RIGHTS TO AN ORSON WELLES MOVIE; AND THE COURT THERE

6

SAYS THAT, UNDER THE DISCOVERY RULE, THE PERIOD DOES NOT

7

BEGIN TO RUN UNTIL THE DEFENDANTS NOTIFIED HER THAT THEY

8

REPUDIATED HER COPYRIGHT OWNERSHIP CLAIM.
AND WE ALSO CITE THE SMUCKER CASE --

9
10
11

THE COURT:
THAT.

12
13

I WILL TAKE WHAT YOU ARE SAYING AS THAT EVEN IF
I WERE TO RULE AGAINST YOU, I SHOULD GRANT LEAVE TO AMEND.

14
15

MR. RIFKIN:

THE COURT:

ALL RIGHT.

I'LL TAKE IT AS THAT

ARGUMENT.

18
19

WE BELIEVE WE SHOULD BE PERMITTED

TO AMEND ON THE QUESTION OF THE DISCOVERY RULE.

16
17

COUNSEL, WE DON'T NEED TO GET INTO

WHICH ONE OF YOU WILL BE ADDRESSING THIS ISSUE?
MR. KLAUS?

20

ALL RIGHT.

21

MR. RIFKIN:

22

THE COURT:

MR. KLAUS.

23

MR. KLAUS:

YES.

24

I HAVE VERY LITTLE TO ADD ON THE QUESTION OF THE

25

THANK YOU, MR. RIFKIN.
THANK YOU, YOUR HONOR.

GOOD MORNING, YOUR HONOR.

THREE-YEAR STATUTE OF LIMITATIONS.

I THINK THAT IT IS

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

23
1

CLEAR THAT WHAT WE HAVE HERE IS SIMPLY A REVERSE CASE OF

2

WHAT WE OTHERWISE WOULD HAVE IN AN INFRINGEMENT ACTION.

3

I THINK THAT --

4

THE COURT:

WHY DON'T YOU GO AHEAD AND ADDRESS

5

WHAT MR. RIFKIN SAID IS, IN HIS MIND, THE DIFFERENCE

6

BETWEEN THE MERCHANT SITUATION AND OUR SITUATION, NUMBER

7

ONE, AND ADDRESS WHAT MR. RIFKIN BELIEVES THAT NINTH

8

CIRCUIT LAW RELATING TO THE 1983 ACTION MIGHT SUGGEST, IN

9

HIS MIND AT LEAST, PURSUANT TO HIS ARGUMENT THAT WE SHOULD

10
11
12
13

HAVE A DIFFERENT RESULT HERE.
WHY DON'T YOU GO AHEAD AND SEE IF YOU CAN
ADDRESS THOSE TWO, PLEASE.
ON THE TWO POINTS WITH RESPECT TO

MR. KLAUS:

14

MERCHANT AND CO-OWNERSHIP AND WITH RESPECT TO WHAT IS

15

BEING ALLEGED HERE BY THE PLAINTIFFS, I DON'T THINK THERE

16

IS A MATERIAL DIFFERENCE.

17

CREATES A CAUSE OF ACTION FOR SOMEONE TO SAY I'M AN OWNER

18

OR NOT AN OWNER OR A CO-OWNER.

19

I DON'T THINK THE COPYRIGHT ACT

IT ESTABLISHES THE PARAMETERS OF WHAT

20

CO-OWNERSHIP ARE AND WHAT FOLLOWS FROM CO-OWNERSHIP IN THE

21

SAME WAY THAT THE COPYRIGHT ACT SAYS WHAT FOLLOWS FROM

22

WHETHER OR NOT SOMETHING IS AN ORIGINAL WORK OF EXPRESSION

23

UNDER SECTION 102.

24

ORIGINAL EXPRESSION, IT IS OR IS NOT ELIGIBLE FOR

25

COPYRIGHT PROTECTION.

AND IF SOMETHING IS OR IS NOT AN

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

24
1

THE OTHER ELEMENTS OF THE CLAIMS THAT ARE BEING

2

ALLEGED HERE HAVE TO DO WITH COMPLIANCE WITH FORMALITIES

3

IN THE ORIGINAL REGISTRATION OF THE COPYRIGHT, IN THE

4

RENEWAL REGISTRATIONS.

5

AGAIN, THOSE DON'T CREATE CAUSES OF ACTION

6

THEMSELVES, BUT THEY ALLOCATE AND THEY SPECIFY HOW IT IS

7

THAT THE COPYRIGHT SYSTEM IS TO APPLY IN A VERY SIMILAR

8

WAY AS OWNERSHIP.

9

AND THE PROVISION OF THE COPYRIGHT ACT SETTING

10

FORTH LIMITATION, NOTABLY -- THIS IS SECTION 507(B) --

11

SECTION 507(B) DOES NOT SAY IN ANY ACTION FOR AN

12

INFRINGEMENT OF COPYRIGHT THAT THE STATUTE OF LIMITATIONS

13

WILL BE THREE YEARS.

14

IT IS ANY ACTION THAT IS MAINTAINED UNDER THE

15

PROVISIONS OF THIS TITLE, TITLE 17, WHICH INCLUDE THE

16

ORIGINALITY, THE REGISTRATION, THE RENEWAL ISSUES THAT THE

17

PLAINTIFFS ARE TALKING ABOUT.

18

WITH RESPECT TO THE SECTION 1983 CAUSE OF

19

ACTION, YOUR HONOR, AS YOU HAVE STATED, SECTION 1983 DOES

20

NOT HAVE ITS OWN CAUSE OF ACTION -- OR STATUTE OF

21

LIMITATIONS IN THE WAY THAT THE COPYRIGHT ACT DOES.

22

AND I THINK THAT THE PROBLEM WITH RESPECT TO THE

23

ENTIRE ARGUMENT FOR BORROWING STATE LAW STATUTES OF

24

LIMITATIONS IS THAT, AS THE SUPREME COURT, AS THE NINTH

25

CIRCUIT HAVE MADE CLEAR, YOU LOOK TO ANALOGOUS STATE LAW

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

25
1

CAUSES OF ACTIONS ONLY WHEN YOU DETERMINE THAT FEDERAL LAW

2

DOESN'T APPLY ITS OWN STATUTE OF LIMITATIONS, WHICH HERE

3

IT CLEARLY DOES UNDER 507(B).

4
5

I WOULD BE HAPPY TO ADDRESS THE EQUITABLE
TOLLING ARGUMENT IF YOU WOULD LIKE, YOUR HONOR.

6
7

THIS TIME.

8
9

THANK YOU.
ALL RIGHT.

LET'S MOVE ON, THEN, TO THE NEXT

ISSUE.

10
11

I DON'T THINK THAT'S NECESSARY AT

THE COURT:

MR. RIFKIN, ARE YOU GOING TO BE ADDRESSING THAT
AS WELL, ALL THE REST OF IT?

12

MR. RIFKIN:

13

THE COURT:

I AM, YOUR HONOR.
OKAY.

WHY DON'T YOU GO TO THE

14

LECTERN, AND NORMALLY WHAT I WOULD DO IS ESSENTIALLY SAY,

15

OKAY, LET'S TALK ABOUT THE NEXT ISSUE, WHICH IS THE

16

PREEMPTION OF ALL OF YOUR STATE LAW CLAIMS THAT THEY CLAIM

17

EXIST.

18

AND FRANKLY, WHEN I WAS WORKING THIS UP, THAT'S

19

EXACTLY WHAT I DID.

20

STARTED THINKING ABOUT THE BIGGER PICTURE OF HOW WE'RE

21

GOING TO PROCEED WITH THIS CASE, NOW I'M QUESTIONING

22

WHETHER, FROM AN EFFICIENCY STANDPOINT, IT IS SOMETHING

23

THAT WE SHOULD BE PROCEEDING WITH NOW OR, IF NECESSARY,

24

ONLY AT A SUBSEQUENT TIME.

25

BUT AFTER I WORKED THIS ALL UP AND

SO LET ME TELL YOU WHAT I MEAN BY ALL OF THIS.

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

26
1

FIRST LET ME ASK YOU -- I'M NOT CLEAR ON WHAT IT

2

IS THAT YOU THINK YOU CAN GET FOR YOUR CLIENTS OR THE

3

CLASS, IF THERE IS A CLASS UNDER THE FIVE STATE LAW CLAIMS

4

THAT YOU HAVE THAT, IN REALITY, IN ANY MATERIAL MEASURE,

5

YOU CANNOT GET ON YOUR DECLARATORY RELIEF ACTIONS OR, YOU

6

KNOW, CAUSES OF ACTION.

7
8

MR. RIFKIN:

YOU ARE ASKING NOW STRICTLY BY WAY

OF REMEDY?

9

THE COURT:

10

MR. RIFKIN:

YES.
I THINK THAT THE CALIFORNIA LAW

11

PERMITS, NUMBER ONE, THE ATTORNEYS' FEES, RECOVERY OF

12

ATTORNEYS' FEES, WHERE THE COPYRIGHT ACT, I DON'T BELIEVE,

13

WOULD HERE, BECAUSE WE DON'T THINK WE HAVE A CLAIM UNDER

14

THE COPYRIGHT ACT.

15

THE COURT:

16

MR. RIFKIN:

17

THE COURT:

18

IF YOUR DECLARATORY RELIEF ACTION IS BASED UPON

WELL, IF YOU -WE HAD A CLAIM -LET ME FINISH.

19

THE PROVISIONS OF THE COPYRIGHT ACT, IT SEEMS TO ME THAT

20

THE COPYRIGHT ACT'S ATTORNEYS' FEES PROVISION WOULD APPLY.

21

AND I JUST DID SOME QUICK RESEARCH BECAUSE THIS

22

IS MORE -- I GUESS WE'RE TALKING MORE IN TERMS OF CASE

23

MANAGEMENT THAN ULTIMATE SUBSTANTIVE ISSUES, BUT I THINK

24

THAT'S IMPORTANT BECAUSE I DON'T WANT TO PUT A CART BEFORE

25

THE HORSE.

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

27
1

IT APPEARS THAT THERE ARE AT LEAST A COUPLE OF

2

SECOND CIRCUIT CASES WHICH HAVE GRANTED ATTORNEYS' FEES

3

UNDER THE COPYRIGHT ACT FOR DECLARATORY RELIEF ACTIONS

4

THEREUNDER.

5
6

THAT'S FROM MY PRELIMINARY RESEARCH.

SO LET'S JUST, FOR THE SAKE OF ARGUMENT, ASSUME
THAT THAT'S CORRECT.

7

WE CAN CERTAINLY CHECK IT.

BUT IF THAT IS CORRECT, WHAT OTHER REMEDIES THAT

8

YOU WOULD GET FROM THESE FOUR -- I'M SORRY -- FIVE CLAIMS

9

UNDER STATE LAW THAT YOU COULD NOT OTHERWISE GET FROM YOUR

10

DECLARATORY RELIEF?

11

WELL, YOUR HONOR, WE ADDRESSED ONE,

MR. RIFKIN:

12

WHICH, OF COURSE, IS THE QUESTION OF HOW FAR BACK IN TIME

13

WE ARE PERMITTED TO GO.

14

THE DEFENDANTS' MOTION EFFECTIVELY, WITH RESPECT

15

TO THE THREE-YEAR STATUTE OF LIMITATIONS, CUTS OFF THE

16

CLAIMS OF TWO OF THE PLAINTIFFS AND SHORTENS THE CLASS

17

PERIOD.

18

SO I THINK IT SIGNIFICANTLY WOULD EXPAND THE

19

SCOPE OF THE CASE BY THAT ADDITIONAL YEAR.

20

DECIDES TO APPLY THE THREE-YEAR STATUTE OF LIMITATIONS ON

21

THE DECLARATORY JUDGMENT ACT CLAIM, I DON'T BELIEVE THE

22

COURT WOULD APPLY THE THREE-YEAR STATUTE OF LIMITATIONS TO

23

THE -- FOR EXAMPLE, THE U.C.L. CLAIM.

24
25

THE COURT:

IF THE COURT

WELL, LET'S PUT THAT ASIDE.

LET'S

COUNT THEM UP SO THAT I KNOW WHAT THE DIFFERENCES ARE.

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

28
1
2

ONE IS POTENTIALLY ATTORNEYS' FEES.

ONE IS

POTENTIALLY STATUTE OF LIMITATIONS.

3

ANYTHING ELSE?

4

MR. RIFKIN:

OTHER THAN ANY OTHER STATUTORY

5

DAMAGES THAT I'M NOT AWARE OF, TO ANSWER THE QUESTION, I

6

DON'T BELIEVE THERE ARE ANY OTHER REMEDIES BESIDES THE

7

ATTORNEYS' FEES QUESTIONS AND THE QUESTION ON THE STATUTE

8

OF LIMITATIONS.

9

AND, AGAIN, YOU KNOW, THIS WAS CONSISTENT WITH

10

OUR VIEW THAT WE DO NOT HAVE EITHER A RIGHT UNDER THE

11

COPYRIGHT ACT TO BE FREE FROM THIS WRONGDOING OR A REMEDY

12

UNDER THE COPYRIGHT ACT.

13

IF THE COURT'S GOING TO DISAGREE WITH THAT,

14

WE'LL OBVIOUSLY BE GUIDED BY THE COURT'S RULINGS, AND THAT

15

MAY CHANGE MY POINT OF VIEW.

16

BUT WE CERTAINLY BELIEVE THAT THE STATUTE -- THE

17

AVAILABILITY OF ATTORNEYS' FEES AND THE EXTRA YEAR ON THE

18

STATUTE OF LIMITATIONS ARE IMPORTANT CONSIDERATIONS.

19

THE COURT:

SO AGAIN, MAYBE IT'S NOT SOMETHING

20

THAT WE NEED TO DECIDE STRICTLY TODAY, BUT LET'S PUT ASIDE

21

THE ATTORNEYS' FEES BECAUSE I THINK WE CAN FIGURE THAT OUT

22

RELATIVELY SIMPLY.

23

SO LET'S TALK ABOUT THE STATUTE OF LIMITATIONS.

24

THERE ARE TWO OF THE PLAINTIFFS -- I DON'T

25

REMEMBER WHICH TWO.

I THINK MR. SIEGEL IS ONE, AND --

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

29
1

MR. RIFKIN:

2

THE COURT:

3

MR. RIFKIN:

4

CORRECT.
WHO IS THE OTHER ONE?
MAJAR PRODUCTIONS IS THE OTHER

ONE.

5

THE COURT:

6

LET'S JUST SAY, FOR THE SAKE OF ARGUMENT ONLY,

7

BECAUSE I CERTAINLY HAVEN'T EVEN REACHED THE QUESTION OF

8

GIVING YOU LEAVE TO AMEND, MUCH LESS KNOW WHAT YOU ARE

9

GOING TO SAY, WHICH MAY CHANGE EVERYTHING.

10
11

OKAY.

MAJAR PRODUCTIONS.

LET'S PUT THAT

ASIDE.
ASSUME FOR THE SAKE OF ARGUMENT THAT, AT THE END

12

OF THE DAY, AFTER WHATEVER AMENDMENTS I GIVE YOU AN

13

OPPORTUNITY TO MAKE, I STILL DECIDE IT'S A THREE-YEAR

14

STATUTE AND THAT MR. SIEGEL AND THE OTHER PLAINTIFF ARE

15

OUTSIDE OF IT.

16

LET'S JUST ASSUME THAT.

17

MR. RIFKIN:

18

THE COURT:

CORRECT.
WHICH MEANS THAT I WOULD DISMISS THE

19

DECLARATORY RELIEF ACTIONS AS TO THOSE DEFENDANTS AS TIME

20

BARRED -- THOSE TWO PLAINTIFFS AS TIME BARRED, MUCH LIKE

21

WHAT THEY DID IN MERCHANT.

22

THEY DISMISSED IT AND SAID NO RELIEF.

23

MAGISTRATE JUDGE THERE HAD SOMEHOW SAID WELL, YOUR RELIEF

24

IS LIMITED TO THREE YEARS, BUT THE SECOND CIRCUIT

25

DISAGREED WITH THAT AND SAID THEY'RE GONE.

THE

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

30
1

ALL RIGHT.

IF THAT IS ALSO THE CASE WITH

2

RESPECT TO MR. SIEGEL AND THE OTHER PLAINTIFF -- AND WE

3

POSIT THAT FOR ARGUMENT'S SAKE -- THEN COULD THEY STILL

4

HAVE A FOUR-YEAR STATUTE OF LIMITATIONS WITH RESPECT TO

5

THE STATE LAW CLAIMS?

6

NOT THAT THE STATE LAW CLAIMS ALL OF A SUDDEN

7

CHANGE A STATUTE OF LIMITATIONS.

8

THEY EVEN HAVE A CLAIM EVEN THOUGH THE STATUTE OF

9

LIMITATIONS IS FOUR YEARS BECAUSE ONE OF THE ELEMENTS UPON

BUT EFFECTIVELY, CAN

10

WHICH IT IS DEPENDENT -- THAT IS, VALIDITY OR INVALIDITY

11

AS TO THEM -- HAS BEEN DECIDED AGAINST THEM.

12
13

AND SO AS AN ELEMENT, THEY CAN'T EVEN PREVAIL ON
THAT ELEMENT.

14

SO ALL THE REST OF IT IS IRRELEVANT BECAUSE ALL

15

OF YOUR STATE LAW CLAIMS -- I THINK YOU WOULD AGREE ON

16

THAT.

17

IF I'M WRONG AND YOU DISAGREE, PLEASE LET ME KNOW.
BUT I THINK YOU WOULD AGREE THAT ALL OF YOUR

18

STATE LAW CLAIMS ARE DEPENDENT UPON THE DETERMINATION THAT

19

THEIR COPYRIGHT CLAIM IS INVALID.

20
21

MR. RIFKIN:

RIGHT?

THE FACTUAL DETERMINATION THAT

THEIR COPYRIGHT DOES NOT EXTEND TO THE SONG, CORRECT.

22

THE COURT:

23

MR. RIFKIN:

RIGHT.
INVALID OR VALID, IT'S A

24

DIFFERENCE.

25

WE SAY DO NOT PROTECT THE SONG.

THEY CLAIM RIGHTS UNDER TWO COPYRIGHTS, WHICH
IT'S NOT THAT THOSE

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

31
1

COPYRIGHTS ARE INVALID, IT'S THAT THEY DON'T PROTECT THE

2

SONG.

3
4

BUT THAT'S CORRECT, YOUR HONOR.

TO PROVE, EVEN UNDER THE STATE LAW CLAIMS --

5

THE COURT:

6

MR. RIFKIN:

7
8
9
10

THE COURT:

YOU HAVE TO DO THAT.

WE WOULD HAVE TO PROVE THAT THEY DO

LET'S PUT IT SIMPLY.

IF YOU LOSE

THE DECLARATORY RELIEF CLAIMS THAT YOU HAVE, YOU CAN'T GO
FORWARD WITH YOUR STATE LAW CLAIM, CAN YOU?
MR. RIFKIN:

12

THE COURT:

13

MR. RIFKIN:

15

RIGHT.

NOT OWN THE RIGHTS THEY CLAIM TO OWN.

11

14

WE WOULD HAVE

I DISAGREE WITH THAT.
HOW IS THAT?
BECAUSE IT IS NOT NECESSARY, FOR

EXAMPLE, UNDER THE FALSE ADVERTISING LAW.
IT IS NOT NECESSARY FOR THE PLAINTIFF TO PLEAD

16

OR PROVE THAT THE DEFENDANTS' CONDUCT IS VIOLATIVE OF ANY

17

STATUTORY RIGHT THAT THE PLAINTIFF HAS OR DOESN'T HAVE.

18

IT SIMPLY HAS TO BE MISLEADING.

19

AND IF THE CLAIM IS FALSE OR MISLEADING, THE

20

FACT THAT THE PLAINTIFF IS PRECLUDED BY AN APPLICABLE

21

STATUTE OF LIMITATIONS -- AND I'M GOING TO ASSUME FOR A

22

MOMENT THAT --

23
24
25

THE COURT:

NO, NO.

DON'T GO TO THE STATUTE OF

LIMITATIONS YET.
FINISH THEIR THOUGHT ON WHY, UNDER ANY

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

32
1

CIRCUMSTANCES, YOU WOULD STILL HAVE A FALSE ADVERTISING

2

CLAIM EVEN IF YOU WERE TO LOSE ON YOUR TWO DECLARATORY

3

RELIEFS.

4

MR. RIFKIN:

OH, I'M SORRY, I MISUNDERSTOOD.

5

THOUGHT YOU WERE ASKING, IF THE COURT DETERMINES THE

6

I

STATUTE OF LIMITATIONS --

7
8

THE COURT:
MY FAULT.

9

OKAY.

NO, NO.

I'M SORRY.

I WASN'T CLEAR.

LET ME REPHRASE.

LET'S SAY WE GO AHEAD WITH THE DECLARATORY

10

RELIEF ACTIONS.

11

LET'S PUT THAT ASIDE.

12

LIMITATIONS ANYMORE; WE'RE TALKING SUBSTANCE.

13
14

WHETHER IT'S THREE YEARS OR OTHERWISE,

WE HAVE A TRIAL, AND THE TRIAL COMES OUT YOU
LOSE, THEY WIN.

15

MR. RIFKIN:

16

THE COURT:

17

20

ON THE DECLARATORY JUDGMENT?
ON EVERYTHING THAT YOU RAISE IN YOUR

DECLARATORY JUDGMENT CAUSES OF ACTIONS.

18
19

WE'RE NOT TALKING STATUTE OF

CAN YOU STILL GO AHEAD WITH YOUR STATE LAW
CLAIMS?
MR. RIFKIN:

I SUPPOSE THE ONLY ISSUE THAT I'M

21

HESITANT ON -- SUBSTANTIVELY, I THINK THE FACT WOULD BE IN

22

THAT CASE THAT THE JURY FOUND THAT WE HAD NOT PROVEN THAT

23

THE COPYRIGHT DID NOT COVER THE RIGHT TO THE SONG.

24
25

THE COURT:

OR THAT IT WAS INVALID BECAUSE I

THINK YOU WERE ALSO TALKING ABOUT VALIDITY.

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

33
1
2
3

WELL, WE TALKED ABOUT VALIDITY ONLY

MR. RIFKIN:

TO THE EXTENT THAT THE CLAIM IS INVALID.
IF THE COURT UNDERSTOOD US BE ASKING TO

4

INVALIDATE ANY EXISTING COPYRIGHTS, I DON'T THINK THAT'S

5

NECESSARY, GIVEN WHAT WE NOW UNDERSTAND THE DEFENDANTS'

6

DEFENSE TO BE.

7
8
9

THE COURT:

OKAY.

I WASN'T CLEAR ON THAT.

I'M

GLAD YOU CLARIFIED THAT.
AND IT'S ONLY NOW THAT WE'VE SEEN A

MR. RIFKIN:

10

HINT OF THE DEFENDANTS' DEFENSE THAT WE KNOW THAT THEY'RE

11

CLAIMING, AT LEAST WHAT WE UNDERSTAND, IS THAT THEY'RE

12

CLAIMING RIGHTS UNDER TWO 1935 COPYRIGHTS WHICH WE DON'T

13

BELIEVE COVER THE SUBJECT MATTER OF THE SONG.

14
15
16
17
18

IT'S NOT A QUESTION OF THEIR VALIDITY OR
INVALIDITY, IT'S JUST THE SCOPE OF THEM.
THE COURT:

THAT'S NOW AT THE HEART OF YOUR

DECLARATORY RELIEF.
MR. RIFKIN:

AS WE UNDERSTAND THE WAY THE

19

DEFENDANTS HAVE SAID THEY INTEND TO DEFEND THIS CASE IN

20

SUMMARY JUDGMENT AND, THEN, IF THEY LOSE SUMMARY JUDGMENT,

21

AT TRIAL, THEY, AS WE UNDERSTAND IT, THEY SAY THAT TWO

22

COPYRIGHTS IN 1935 GIVE THEM THE RIGHTS TO THE SONG.

23
24
25

WE DISPUTE THAT THOSE TWO COPYRIGHTS GIVE THEM
THE RIGHTS TO THE SONG.
NOW, I WILL PARENTHETICALLY SAY THAT ONE OF

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

34
1

THOSE COPYRIGHTS -- THERE MAY BE A QUESTION ABOUT THE

2

ENFORCEABILITY OF THAT COPYRIGHT, BUT IT'S A TECHNICAL

3

QUESTION THAT I DON'T THINK NEEDS TO BE RESOLVED TO ANSWER

4

THE COURT'S QUESTIONS.

5

THE COURT:

6

MR. RIFKIN:

OKAY.
I THINK THAT UNLESS THERE IS A

7

DIFFERENT BURDEN OF PROOF, WE WOULD NEED TO PROVE THE SAME

8

FACTS FOR THE STATE LAW CLAIMS AS FOR THE DECLARATORY

9

JUDGMENT.

10

THE COURT:

WHICH MEANS THAT YOU AGREE WITH ME

11

THAT IF YOU, SUBSTANTIVELY, ON THE MERITS LOSE ON YOUR

12

CLAIMS FOR DECLARATIVE RELIEF, YOU WOULD NOT HAVE ANY

13

STATE LAW CLAIMS LEFT.

14

MR. RIFKIN:

15

THE COURT:

RIGHT?
CORRECT.
OKAY.

WITH THAT UNDERSTANDING, MY

16

QUESTION TO YOU IS THIS, AND THEN I'LL ADDRESS MR. KLAUS

17

ON THIS AS WELL.

18
19
20

SO YOU MIGHT BE THINKING ABOUT IT AS WE'RE
TALKING, MR. KLAUS.
WHY ARE WE SPENDING TIME, NOT ONLY IN TERMS OF

21

LITIGATING PREEMPTION, LITIGATING WHAT YOUR STATUTES ARE,

22

WHETHER THOSE THREE-YEAR STATUTES -- I THINK THAT'S THE

23

F.A.L. AND THE MONEY-HAD-AND-RECEIVED COUNTS -- WHETHER WE

24

SHOULD ALLOW YOU TO AMEND TO ASSERT SOME SORT OF

25

DISCOVERY, TOLLING, WHATEVER YOUR THEORIES ARE; AND WHY

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

35
1

ARE WE LITIGATING THE SUFFICIENCY OF YOUR ALLEGATIONS

2

WHETHER THEY ARE CONTROLLED BY RULE 9(B)?

3

AND EVEN IF THEY ARE NOT CONTROLLED BY RULE

4

9(B), SUFFICIENTLY PLAUSIBLE OF THE TWOMBLY AND IQBAL

5

UNDER RULE 8, DO WE NEED TO LITIGATE ANY OF THOSE NOW?

6

NOW?

7

OR DO WE, FROM A CASE MANAGEMENT STANDPOINT, SAY

8

WE BIFURCATE THIS ACTION, WE GO AHEAD AND PROCEED ON THE

9

DECLARATORY RELIEF ONLY, AND WE HAVE A TRIAL ON THAT, IF

10

NECESSARY; OR IF IT'S RESOLVED IN SUMMARY JUDGMENT, FINE.

11

IF IT'S NOT RESOLVED IN SUMMARY JUDGMENT, WE HAVE A TRIAL

12

ON IT.

13

ONCE WE HAVE THAT TRIAL, IF YOU LOSE AND THEY

14

WIN, CASE OVER.

15

QUESTION IS IS THERE REALLY ANY DIFFERENCE IN TERMS OF

16

REMEDIES THAT ARE AVAILABLE?

IF YOU WIN, THEY LOSE, THEN THE INTERIM

17

AND THAT MAY BE THE TIME THAT WE CAN, IN

18

EARNEST, LITIGATE THE ISSUE OF THE AVAILABILITY OF

19

ATTORNEYS' FEES AND ANY CONSTRICTION IN THE STATUTE OF

20

LIMITATIONS FOR THE STATE LAW CLAIMS.

21

IF THERE IS NO DIFFERENCE, THEN AGAIN, WHY DO WE

22

NEED TO WORRY ABOUT THOSE?

23

AND ONLY THEN, IT SEEMS TO ME, THEN WE CAN SAY, WELL, ARE

24

THESE CLAIMS ALL PREEMPTED ANYWAY?

25

IF THERE IS A DIFFERENCE, THEN

IF THE ANSWER IS YES, END OF STORY.

IF THE

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

36
1

ANSWER IS NO, THEN WE CAN TALK ABOUT THE SUFFICIENCY OF

2

THE CLAIMS AS A SUBSTANTIVE MATTER.

3

THAT'S SORT OF MY THOUGHT PROCESS, AND I WANTED

4

YOU TO HAVE A SHOT AT IT, AND I WANT MR. KLAUS TO HAVE A

5

SHOT AT IT.

6

MR. RIFKIN:

YOUR HONOR, I APPRECIATE VERY MUCH

7

YOUR THOUGHTS ON THAT; AND THE THOUGHT OCCURRED TO US

8

THAT, REALLY, ALL THE EFFECT OF THIS MOTION IS IS TO

9

DECIDE WHETHER THIS IS A THREE-YEAR CLASS OR A FOUR-YEAR

10

CLASS.

11

AND I THINK THAT, AS LONG AS THE COURT

12

UNDERSTANDS THAT, IN OUR VIEW -- AND I DON'T KNOW THAT THE

13

DEFENDANTS REALLY WOULD GENUINELY DISPUTE THIS.

14

IF WE WERE SUCCESSFUL IN OUR DECLARATORY

15

JUDGMENT CLAIM AND THE COURT WERE TO ENTER JUDGMENT ON

16

THOSE CLAIMS, IT WOULD NOT -- AND AGAIN, LET'S LEAVE ASIDE

17

THE QUESTION OF ATTORNEYS' FEES FOR A MOMENT -- IT WOULD

18

NOT GIVE US THE RIGHT TO THEN MOVE IMMEDIATELY FOR

19

JUDGMENT ON ALL THE STATE LAW CLAIMS BECAUSE I THINK SOME

20

OF THE STATE LAW CLAIMS HAVE ADDITIONAL ELEMENTS TO THEM.

21

BUT AS LONG AS THE COURT UNDERSTANDS THAT THERE

22

MAY BE SOME ISSUES LEFT TO TRY AFTER THE DECLARATORY

23

JUDGMENT, IF THE DECLARATORY JUDGMENT WAS RESOLVED

24

SUCCESSFULLY IN FAVOR OF THE PLAINTIFFS, THEN I THINK YOUR

25

HONOR'S SUGGESTION MAKES SENSE.

AND MAYBE THE THING TO DO

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

37
1

IS TO HAVE THE DEFENDANTS WITHDRAW THE MOTION TO DISMISS,

2

WHICH REALLY DOESN'T MOVE TO DISMISS THE CASE SO MUCH AS

3

JUST LIMIT THE CLAIMS.

4

BUT I JUST WANT TO MAKE SURE WE ARE AWARE THAT

5

IT ONLY ENDS THE CASE IN THE EVENT OF AN ADVERSE

6

DETERMINATION AGAINST THE PLAINTIFF ON THE DECLARATORY

7

JUDGMENT SIDE OF THE CASE ON THE MERITS, AS OPPOSED TO FOR

8

SOME TECHNICAL DEFICIENCY OR SOMETHING LIKE THAT.

9

BUT IF THE COURT OR A JURY DECIDES THAT THE

10

PLAINTIFF CANNOT PROVE THE MERITS OF THE CASE ON THE

11

DECLARATORY JUDGMENT, THEN I WOULD AGREE THE PLAINTIFF

12

CAN'T PROVE THE MERITS OF ANY OF THE STATE LAW CLAIMS.

13
14

WITH THOSE CLARIFICATIONS IN MIND, I THINK THE
COURT'S SUGGESTION IS SENSIBLE.

15

THE COURT:

I THINK WE'RE REALLY ON THE SAME

16

PAGE.

17

THE DIFFERENT LEVELS OF WHAT WE HAVE TO DO, DEPENDING ON

18

WHAT HAPPENS WITH THE DECLARATORY RELIEF ACTION, CLEARLY

19

DOES NOT SUGGEST AT ALL THAT I THINK, NECESSARILY, THAT IF

20

YOU WERE TO WIN THE DECLARATORY RELIEF, THE CASE ENDS --

21

I'M NOT SUGGESTING THAT AT ALL.

22

NOT END BECAUSE WE HAVE TO CONSIDER ALL OF THESE OTHER

23

ISSUES.

24
25

AND BECAUSE, AS YOU SEE, THE WAY THAT I SET FORTH

THE CASE MAY VERY WELL

NOW, AS A PRACTICAL MATTER, MIGHT IT END?
KNOWS.

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

WHO

38
1

MR. RIFKIN:

2

AND THERE IS ONE OTHER THING WHICH I THINK WE

OF COURSE.

3

PROBABLY OUGHT TO PUT OUT ON THE TABLE JUST BECAUSE I SEE

4

IT AS A POTENTIAL ISSUE, AND FRANKLY, I HAVEN'T THOUGHT

5

ENOUGH ABOUT IT YET TO HAVE A DEFINITIVE ANSWER.

6

BUT THERE IS A QUESTION ABOUT A RIGHT TO A JURY.

7

AND I AM NOT SURE, AND I COULD NOT DEFINITIVELY ANSWER YOU

8

BECAUSE THE ISSUE HASN'T ARISEN YET.

9

BUT IF ALL WE HAD BROUGHT WERE TWO DECLARATORY

10

JUDGMENT ACTIONS, I'M NOT SURE WHETHER THE PLAINTIFFS HAVE

11

OR DO NOT HAVE A RIGHT TO A TRIAL BY JURY.

12

ON THE OTHER HAND, I KNOW WITH CERTAINTY THAT

13

THE PLAINTIFFS HAVE A RIGHT TO A TRIAL BY JURY ON THE

14

STATE LAW CLAIMS.

15

AND I WANT TO BE CAUTIOUS OF PROTECTING THEIR

16

RIGHTS TO A TRIAL BY JURY.

17

LET'S BIFURCATE, I THINK WE MIGHT NEED TO GIVE A LITTLE

18

BIT OF THOUGHT TO THAT AND THEN THE COURT NEEDS TO

19

CONSIDER WHETHER, IF ONE CAUSE OF ACTION ALONE COULD BE

20

TRIED BY A JURY BUT ANOTHER CAUSE OF ACTION ALONE COULD

21

NOT BE, WHAT THAT MEANS FOR BIFURCATING THE CASE THE WAY

22

YOUR HONOR HAS SUGGESTED.

23

AND BEFORE WE COULD SAY YES,

AND IN FAIRNESS TO YOU AND IN FAIRNESS TO THE

24

DEFENDANTS, I'M NOT PREPARED TO ANSWER THAT QUESTION

25

DEFINITIVELY.

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

39
1

THE COURT:

2

MR. RIFKIN:

3

BUT I AM AWARE OF THE ISSUE, AND I

WANT TO MAKE SURE THAT WE GIVE IT SOME THOUGHT.

4
5

I UNDERSTAND.

THE COURT:

I APPRECIATE THAT.

THANK YOU VERY

MUCH.

6

MR. RIFKIN:

7

THE COURT:

MR. KLAUS.

8

MR. KLAUS:

THANK YOU, YOUR HONOR.

9

I THINK THAT, FIRST OF ALL, THE QUESTION OF

YOU ARE WELCOME, YOUR HONOR.

10

BIFURCATION, I THINK THE ISSUE THAT MR. RIFKIN RAISED NEAR

11

THE END OF HIS ARGUMENT POSES A REAL QUESTION.

12

ON THE DECLARATORY JUDGMENT CLAIMS, THE

13

DECLARATORY JUDGMENT CLAIMS, IN AND OF THEMSELVES, ARE

14

TRIED TO THE COURT.

15

THE DECLARATORY JUDGMENT CLAIMS.

16

THERE IS NOT A JURY TRIAL RIGHT ON

AND I BELIEVE THAT WHAT MR. RIFKIN WAS SAYING

17

WAS THAT HE WOULD BE HESITANT TO AGREE TO BIFURCATION IF

18

HE THOUGHT THAT HE HAD A SEVENTH AMENDMENT JURY TRIAL

19

RIGHT TO ONE OF THE ADDITIONAL STATE LAW CAUSES OF ACTION.

20

AND FRANKLY, THAT IS ONE OF THE -- THAT'S ONE OF

21

THE DIFFERENCES BETWEEN PROCEEDING IN JUST A BIFURCATED

22

WAY AND THEN RESOLVING THE ISSUES WITH THESE POINTS NOW.

23

WE WOULD THINK THAT IF THE PLAINTIFFS WERE

24

AGREEABLE TO A DECLARATORY JUDGMENT, TO HAVING DISCOVERY

25

LIMITED TO THE DECLARATORY JUDGMENT CLAIM AND HAVING A

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

40
1

BENCH TRIAL LIMITED TO THE DECLARATORY JUDGMENT CLAIM,

2

THAT WOULD BE FAR AND AWAY THE MOST EFFICIENT WAY TO

3

MANAGE THIS CASE.

4

JUST BY WAY OF BACKGROUND, FOR ALL THE

5

PARAGRAPHS, FOR ALL THE CONTENTIONS THAT ARE IN THE

6

COMPLAINT ABOUT PEOPLE IN A SUNDAY SCHOOL, HAVING SUNG THE

7

LYRICS TO "HAPPY BIRTHDAY TO YOU" PRIOR TO THE 1935

8

REGISTRATION, WE THINK THIS CASE WILL, IN FACT, END VERY

9

QUICKLY ON THE MERITS WHEN WE PUT INTO EVIDENCE THE

10

REGISTRATION, THE CERTIFICATES OF REGISTRATION THAT WERE

11

ISSUED IN 1935 THAT DO TALK ABOUT TEXT, NOT SIMPLY PIANO

12

ARRANGEMENTS -- TEXT, WHICH MEANS LYRICS, AND WHICH DO

13

TALK ABOUT THE AUTHORSHIP BEING ORIGINAL TO MILDRED HILL.

14

THOSE REGISTRATION CERTIFICATES, UNDER OPERATION

15

OF THE COPYRIGHT ACT, ARE PRIMA FACIE PROOF THAT THE

16

COPYRIGHTS ARE VALID --

17

THE COURT:

I DON'T WANT TO --

18

MR. KLAUS:

-- THAT THEY WERE NOT COPIED.

19

BUT MY POINT BEING, YOUR HONOR, THAT IT WOULD BE

20

A VERY STREAMLINED.

21

STREAMLINED PROCEDURE TO PROCEED WITH A JUDGMENT AS TO

22

WHAT REALLY IS THE ONLY ALLEGATION WE THINK THAT'S FAIRLY

23

IN THE CASE, WHICH IS AN ALLEGATION THAT YOU,

24

WARNER/CHAPPELL, HAVE A COPYRIGHT THAT WE CONTEND IS

25

INVALID.

WE THINK IT WOULD BE A VERY

YOU HAVE LICENSED THAT COPYRIGHT THAT WE CONTEND

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

41
1

IS INVALID, AND WE THINK THAT THAT --

2
3

THE COURT:

BUT MR. RIFKIN HAS SORT OF WALKED

BACK FROM THAT CONTENTION TODAY.

4

YOU HEARD HIM SAY THAT.

HE SAID HE'S NOT NECESSARILY SO MUCH CONTENDING

5

THAT YOUR COPYRIGHTS ARE INVALID AS THAT YOUR COPYRIGHTS

6

DON'T COVER WHAT IT IS THAT HE SAYS THAT HIS CLIENTS WOULD

7

LIKE TO DO.

8

MR. KLAUS:

I HEARD WHAT HE SAID, AND I READ THE

9

ALLEGATIONS OF THE COMPLAINT IN PARAGRAPH 93 AND 98 WHERE

10

THE PLAINTIFFS SPECIFICALLY ALLEGE THAT THE WORK THAT WAS

11

ALLEGED INCLUDED THE LYRICS.

12

SO IF THEY WANT TO -- IF THEY ARE GOING TO AMEND

13

THE COMPLAINT AND THEY ARE GOING TO DO SO CONSISTENT WITH

14

THEIR OBLIGATIONS TO INVESTIGATE THE COMPLAINT AND FILE

15

IT, I DON'T THINK THEY'RE ULTIMATELY EVER GOING TO BE ABLE

16

TO HAVE AN ALLEGATION THAT BACKS AWAY FROM THE CLAIM THAT

17

YOU, WARNER/CHAPPELL, HAVE COPYRIGHT REGISTRATIONS THAT

18

COVER THE LYRICS TO "HAPPY BIRTHDAY TO YOU."

19

AND IT'S THE PLAINTIFFS' CONTENTION THAT YOU

20

COULD NOT VALIDLY HAVE OBTAINED THOSE REGISTRATIONS

21

BECAUSE THAT WORK WAS NOT ORIGINAL TO THE COPYRIGHT

22

AUTHOR.

23
24
25

THAT'S THE ESSENCE OF THE CLAIM THAT'S IN THE
CASE.
THE COURT:

WELL, IT IS WHAT IT IS; AND IF THEY

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

42
1

HAVE A DIFFERENT THEORY, THEN IT'S UP TO THEM TO ASK TO

2

AMEND TO SET FORTH THAT THEORY THAT DOESN'T EXIST OR IS

3

NOT APPARENT, PERHAPS, IN THE PLEADING SO FAR.

4

LET'S GO BACK TO MY ISSUE.

AND THAT IS I GUESS

5

THE POINT THAT MR. RIFKIN IDENTIFIED IS THAT, TO THE

6

EXTENT THAT HE HAS A RIGHT, CLEARLY, TO JURY TRIAL ON HIS

7

STATE CLAIMS, IF THEY SURVIVE, ONE OF THE ELEMENTS OF

8

WHICH IS -- LET'S JUST GO BY WHAT HAS BEEN ALLEGED TODAY

9

AS OPPOSED TO -- AS OF TODAY, AS OPPOSED TO WHAT MAY BE

10

DIFFERENT, BUT THAT IF IT IS INVALID, THAT WOULD ALSO BE

11

AN ELEMENT OF THE STATE LAW CLAIMS THAT THEY HAVE TO PROVE

12

UP AS PART OF THEIR ELEMENTS, I THINK.

13

AND IF THEY HAVE TO DO THAT, THE JURY WOULD HAVE

14

TO MAKE A DECISION.

15

MADE BY ME IN A DECLARATORY RELIEF CONTEXT, THE QUESTION

16

THEN IS WHETHER OR NOT I HAVE, IN ESSENCE, SUPERSEDED THAT

17

JURY DETERMINATION TO WHICH THEY WOULD OTHERWISE HAVE A

18

RIGHT TO UNDER STATE LAW, AND THE QUESTION IS WHETHER

19

THOSE OLD, YOU KNOW, BEACON THEATER, THE DAIRY QUEEN

20

CASES, WOULD COME INTO EFFECT OR NOT.

21

BUT IF THAT DECISION HAS ALREADY BEEN

FRANKLY, I HAVEN'T TAKEN A CLOSE READ OF THOSE

22

CASES IN SOME TIME.

23

WHETHER, GIVEN THE FACT THAT THIS DETERMINATION UNDER THE

24

COPYRIGHT ACT, WOULD THAT MAKE A DIFFERENCE AS TO WHETHER

25

OR NOT I WOULD GET TO DO IT REGARDLESS OF IT, WHETHER

AND I DON'T KNOW AT THIS POINT

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

43
1

THOSE CASES WOULD NOT APPLY TO THIS CASE.

2

THIS POINT.

3
4

I CAN'T SAY AT

BUT YOU AGREE THAT THERE IS THAT ISSUE WHICH
MIGHT CAUSE A PROBLEM IN TERMS OF THE BIFURCATION.

5

MR. KLAUS:

I AGREE THAT IT'S AN ISSUE, AND LIKE

6

YOUR HONOR, I HAVEN'T LOOKED AT THE BEACON THEATER OR THE

7

DAIRY QUEEN CASES IN SOME TIME TO DETERMINE WHETHER --

8
9
10

THE INTERESTING QUESTION BEING WHETHER, IF AN
ELEMENT OF YOUR STATE LAW CLAIM, WHICH IS HERE, THE STATE
LAW CLAIMS, AT LEAST AS PLEADED TO DATE, ARE ALL.

11

-- YOU HAVE AN INVALID COPYRIGHT THAT YOU

12

LICENSED; ERGO, YOU BREACHED THE CONTRACT.

13

MONEY-HAD-AND-RECEIVED, RESCISSION, FALSE ADVERTISING --

14

ALL THAT.

15

THE COURT:

RIGHT.

16

MR. KLAUS:

I DON'T KNOW WHETHER THEY ACTUALLY

17

HAVE A SEVENTH AMENDMENT JURY TRIAL RIGHT TO THE

18

UNDERLYING QUESTION, WHICH IS PURELY ONE OF FEDERAL LAW

19

AND A LEGAL QUESTION AS TO WHETHER OR NOT THE COPYRIGHT IS

20

VALID OR NOT.

21
22
23

I DON'T KNOW THE ANSWER TO THAT QUESTION, BUT IT
IS AN ISSUE.
THE COURT:

OKAY.

SO BECAUSE THAT IS AN ISSUE,

24

DOES THAT NECESSARILY MEAN THAT BIFURCATION WOULD BE

25

INADVISABLE; IN OTHER WORDS, WE DON'T HAVE TO SAY THAT

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

44
1

BIFURCATION OF THE DECLARATORY RELIEF WOULD NECESSARILY GO

2

ALL THE WAY THROUGH TRIAL.

3

WE COULD SAY THAT FOR PURPOSES OF DISCOVERY AND

4

PURPOSE OF SUMMARY JUDGMENT, WE'RE GOING TO LIMIT

5

EVERYTHING RATHER THAN EVERYBODY SPENDING TIME, MONEY, AND

6

EXPENSES ON BOTH SIDES ON ALL OF THE REST OF IT -- RATHER

7

THAN HAVING TO SEE WHETHER OR NOT THEY HAVE TO AMEND TO

8

STATE, IF THEY CAN, A PROPER CLAIM FOR THE U.C.L. AND

9

F.A.L.; WHETHER 9(B) APPLIES, SO FORTH AND SO ON --

10

WHETHER UNDER THE THREE-YEAR STATUTE OF LIMITATIONS THE

11

F.A.L. AND MONEY-HAD-RECEIVED THEY WOULD HAVE TO AMEND TO

12

ALLEGE SOME WAY OF GETTING AROUND THE STATUTE OF

13

LIMITATIONS.

14
15
16

THOSE ISSUES WE DON'T HAVE TO DECIDE AT THIS
POINT, NECESSARILY.

WE CAN STILL GO AHEAD AND HAVE IT.

IF THE CASE IS DECIDED ON SUMMARY JUDGMENT IN

17

YOUR FAVOR, WELL, WE DON'T HAVE TO DO ANYTHING ELSE.

18

THE CASE IS NOT DECIDED IN YOUR FAVOR IN SUMMARY JUDGMENT,

19

WE NEED TO HAVE A TRIAL.

IF

20

PERHAPS AT THAT TIME WE CAN DECIDE WHETHER OR

21

NOT THOSE ISSUES REALLY MATTER TO THEM OR WHETHER, FROM

22

THE STANDPOINT OF RELIEF, THEY CAN GET EVERYTHING THEY CAN

23

GET IF THEY WERE TO WIN ON THE DECLARATORY RELIEF.

24
25

ALL OF THESE THINGS HAVE NOT BEEN DECIDED BY
PLAINTIFFS' COUNSEL, NOR CAN I EXPECT THEM TO SINCE I HAVE

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

45
1

LARGELY RAISED THEM JUST TODAY, BUT THAT'S WHAT I -- SO

2

WHY DON'T YOU WEIGH IN ON THAT ONE, MR. KLAUS.

3

MR. KLAUS:

WELL, LIKE PLAINTIFFS' COUNSEL, I

4

WOULD NEED TO, SINCE THESE ISSUES HAVE COME UP AT THE

5

HEARING TODAY, IT'S TYPICALLY THE SORT OF THING THAT I

6

WOULD LIKE TO CONSULT WITH MY CLIENT ON TO MAKE SURE THAT

7

THEY WERE ON BOARD WITH IT.

8
9

I WILL TELL YOU, YOUR HONOR, THAT MY REACTION IS
THAT IF DISCOVERY AND AN EARLY SUMMARY JUDGMENT PERIOD

10

WERE LIMITED TO THE CLAIM OF COPYRIGHT VALIDITY OR

11

INVALIDITY, THAT THAT'S SOMETHING THAT I THINK MAKES A

12

TREMENDOUS AMOUNT OF PRACTICAL SENSE AND WOULD BE -- IT

13

WOULD BE SOMETHING THAT I WOULD THINK WOULD FURTHER CASE

14

MANAGEMENT, AND AT LEAST MY FIRST REACTION IS AGREEABLE TO

15

IT.

16

THAT WOULD, I THINK, SAVE A LOT OF TIME AND A

17

LOT OF MONEY FOR THE PARTIES AND FOCUS THEM, REALLY, IN ON

18

WHAT IS THE CORE ISSUE IN THE CASE.

19
20
21

THE COURT:
DISAGREEING.

OKAY.

MR. RIFKIN SEEMS TO BE

SO WHY DON'T WE HEAR FROM HIM.

MR. RIFKIN:

YOUR HONOR, AS YOU WERE ASKING

22

MR. KLAUS THE QUESTIONS, IT OCCURRED TO ME THAT THE

23

PERFECT SOLUTION TO THIS IS THAT THE COURT SHOULD HEAR THE

24

TWO DECLARATORY JUDGMENT CLAIMS, AT LEAST THROUGH SUMMARY

25

JUDGMENT, BECAUSE THE QUESTION THAT I RAISED ABOUT JURY OR

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

46
1

NO JURY CERTAINLY DOESN'T IMPLICATE ANYTHING UP TO THAT

2

POINT.

3

THE COURT:

4

MR. RIFKIN:

CORRECT.
AND SO I WOULD HAVE NO RESERVATION

5

IN SAYING THAT UP TO THE SUMMARY JUDGMENT DECISION, THEN,

6

YES, IT IS A MORE EFFICIENT WAY TO PROCEED BECAUSE IT

7

POTENTIALLY COULD RESOLVE THE CLAIM EITHER AS A MATTER OF

8

LAW OR, AS YOUR HONOR SUGGESTED, AS A PRACTICAL MATTER.

9
10
11

THE ONLY THING I DISAGREED WITH WAS MR. KLAUS'
LAST COMMENT, WHICH I WANT TO CAUTION THE COURT ABOUT.
HE SAID HE WAS COMFORTABLE RECOMMENDING TO THE

12

CLIENT, I THINK, THAT THE CASE BE BIFURCATED ON THE ISSUE

13

OF THE VALIDITY OR INVALIDITY OF THE COPYRIGHTS.

14

I WANT TO BE CLEAR THAT WHAT WE ARE AGREEING TO

15

IS THE COURT'S INQUIRY ABOUT BIFURCATING THE CASE TO

16

DECIDE THE TWO DECLARATORY JUDGMENT ACT CLAIMS, COUNT 1

17

AND COUNT 2, FIRST.

18

THEY ARE NOT LIMITED TO THE VALIDITY OR

19

INVALIDITY OF THE COPYRIGHTS BECAUSE, AS I SAID, WHAT WE

20

REALLY COMPLAIN ABOUT IS THE SCOPE OF THOSE COPYRIGHTS,

21

VALID, INVALID, OR OTHERWISE.

22

WE SAY THOSE COPYRIGHTS DO NOT PROTECT THE

23

RIGHTS THEY CLAIM TO OWN IN THE SONG.

24

ON THEIR VALIDITY OR INVALIDITY, BUT EQUALLY DEPENDENT ON

25

THE SCOPE OF THE COPYRIGHT ITSELF.

IT IS NOT DEPENDENT

AND WE DISPUTE THE

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

47
1

DEFENDANTS' CHARACTERIZATION OF IT, BUT THAT'S A QUESTION

2

FOR ANOTHER DAY.

3

THE COURT:

DO YOU ASSERT THAT IN YOUR

4

DECLARATORY RELIEF ACTIONS, THE TWO CLAIMS AS THEY ARE

5

PRESENTLY CONSTITUTED, THAT THAT'S THE THEORY THAT'S BEEN

6

FAIRLY RAISED?

7

MR. RIFKIN:

8

THE COURT:

9

MR. RIFKIN:

10
11

THE COURT:

WHICH?
THE LATTER ONE.
YES.
OKAY.

POINT TO ME.

TELL ME THE

PARAGRAPHS THAT SAY THAT.

12

MR. RIFKIN:

WELL, FOR EXAMPLE, PARAGRAPH 93

13

THAT MR. KLAUS POINTED TO FIRST.

14

"FOR THE FIRST TIME THE LYRICS TO 'HAPPY BIRTHDAY TO YOU'

15

INCLUDED A SECOND VERSE AS THE REVISED TEXT, WERE INCLUDED

16

ON THE WORK REGISTERED WITH THE COPYRIGHT OFFICE AS

17

E51988."

WE SAY IN THE COMPLAINT,

18

THAT SECOND VERSE IS THE LIMITATION.

19

REVISED TEXT, IS THE SECOND VERSE THAT WAS ADDED BY R.R.

20

FORMAN, MRS. FORMAN, IN 1935.

21

THAT'S THE

WE HAVE REVIEWED NOT JUST THE COPYRIGHT

22

APPLICATION, BUT ALSO THE COPYRIGHT RECORD AND WHAT'S

23

CALLED THE "DEPOSIT COPY" FOR THAT COPYRIGHT.

24

IS A SECOND VERSE THAT HAS WORDS THAT YOUR HONOR HAS

25

PROBABLY NEVER HEARD.

AND THERE

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

48
1

I'VE NEVER HEARD "MAY YOUR DAY BE BRIGHT, FILLED

2

WITH SUNSHINE AND THE LIGHT," OR SOMETHING LIKE THAT.

3

ONE SINGS, NO ONE WANTS TO PUBLICLY PERFORM.

4

COMMERCIAL VALUE.

5

THE NEW MATTER IN 51988.

6

NO

IT HAS NO

THAT IS THE LIMITATION TO THE CLAIM OF

THE OTHER COPYRIGHT THEY CLAIM TO HAVE OWNERSHIP

7

RIGHTS IN IS 51990.

8

THAT WHAT 51990 SAYS IS A MYSTERY TO THE ENTIRE WORLD.

9

NO ONE -- NO ONE KNOWS, BECAUSE NO ONE HAS A

AND YOU WILL FIND OUT SOON ENOUGH

10

DEPOSIT COPY FOR THAT COPYRIGHT -- NOT THE COPYRIGHT

11

OFFICE, AND WE BELIEVE NOT THE DEFENDANTS.

12

SO WE DON'T BELIEVE THAT THE DEFENDANTS WILL

13

EVER BE ABLE TO PROVE THE SCOPE OF 51990.

14

US THAT THE SCOPE OF 51988 IS THE PIANO ARRANGEMENT AND

15

THE NEW TEXT.

16

IT'S CLEAR TO

IT IS NOT CLEAR TO US AT ALL WHAT THE SCOPE IS

17

FOR 51990 BECAUSE NO ONE KNOWS WHAT IT IS.

18

WORLD IS WAITING FOR THE DEPOSIT COPY FOR THIS COPYRIGHT.

19

THE COURT:

THE WHOLE

SO AS TO THE ONE WHERE THERE IS A

20

DEPOSIT COPY, YOU ARE SAYING THAT THE ONLY LYRICS ARE

21

THOSE -- ONLY LYRICS, NOT THE ADDITIONAL LYRICS, BUT THE

22

ONLY LYRICS IN THE DEPOSIT COPY ARE THOSE THAT YOU SAY

23

HAVE NO COMMERCIAL VALUE, AND YOU ARE NOT INTERESTED IN

24

THAT ANYWAY.

25

MR. RIFKIN:

NO.

THE ONLY CLAIM OF COPYRIGHT

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

49
1

WAS TO THE NEW TEXT.

2

BUT WHEN A WORK IS SORT OF A DERIVATIVE WORK, THE CLAIMANT

3

HAS TO IDENTIFY THE SCOPE OF THE NEW CLAIM.

4

WHEN THEY SAID PIANO ARRANGEMENT AND REVISED TEXT.

5

THE ONLY REVISED TEXT --

6

THE COURT:

7

MR. RIFKIN:

8

THE DEPOSIT COPY INCLUDES THE WORDS,

AND THAT'S
AND

IT WAS CLAIMED AS A DERIVATIVE WORK?
IT WAS CLAIMED AS A DERIVATIVE

WORK, YES.

9

THE COURT:

OKAY.

SO WHAT YOU ARE SAYING IS YOU

10

ARE NOT REALLY SAYING THAT THE COPYRIGHTS ARE INVALID.

11

TO THE EXTENT THAT SOMEBODY WANTS TO PERFORM THOSE LYRICS

12

THAT YOU CHARACTERIZE AS COMMERCIALLY WORTHLESS, OR WORDS

13

TO THAT EFFECT, THAT'S FINE.

14

SING THOSE WORDS THAT NOBODY CARES ABOUT IS WHAT YOU ARE

15

SAYING?

16
17

MR. RIFKIN:

SO

THEY CAN MAKE THEM PAY TO

WHAT I'M SAYING IS THOSE WORDS HAVE

NOTHING TO DO WITH THIS CASE, THAT'S CORRECT.

18

THE COURT:

AND YOU ARE NOT CHALLENGING THE

19

COPYRIGHT TO THE EXTENT THAT IT, IN YOUR VIEW, COVERS

20

THOSE WORDS.

21
22
23

MR. RIFKIN:

OR THE PIANO ARRANGEMENT, FOR THAT

MATTER.
THE COURT:

OKAY.

BUT IF THE DEFENDANTS DISPUTE

24

THAT AND SAY NO, THAT THIS COPYRIGHT PROPERLY CONSTRUED

25

INCLUDES NOT JUST THOSE WORDS OR THAT PIANO COMPOSITION,

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

50
1

BUT TO ALL OF THE OTHER, SHALL WE SAY, MORE VALUABLE AND

2

POPULAR ASPECTS OF IT, IS THAT IN THE NATURE -- WHAT WOULD

3

YOUR ARGUMENT BE THAT THEY DON'T HAVE THAT COPYRIGHT?

4

THAT COPYRIGHT, TO THAT EXTENT OF ASSERTION, IS

5

BEYOND THE SCOPE OF THE COPYRIGHT THAT WAS OBTAINED; AND

6

THEREFORE, IT IS NOT COPYRIGHTED.

7

MR. RIFKIN:

8

FIRST, WE WOULD DISPUTE THAT THAT IS THE SCOPE

9

OF THE COPYRIGHT.

WE WOULD HAVE TWO ARGUMENTS THERE.

BUT ON THE ASSUMPTION THAT YOUR HONOR

10

OR SOME FINDER OF FACT WERE TO CONCLUDE THAT THAT IS THE

11

SCOPE OF THE COPYRIGHT, THAT THE COPYRIGHT 51988 INCLUDES

12

NOT JUST THE ARRANGEMENT AND THE NEW TEXT -- WHICH IS THE

13

CLAIM -- BUT ALSO THE PREEXISTING WORK, WHICH IT SAYS IT

14

DOESN'T --

15

BUT NONETHELESS, THEN OUR VIEW WOULD BE, NUMBER

16

ONE, YOU DO NOT HAVE THAT, THAT THAT WORK DOES NOT FALL

17

WITHIN THE SCOPE OF 102 OR 103 BECAUSE IT IS NOT ORIGINAL

18

WORK.

19

TWO, IT WAS, IN FACT, ALREADY COPYRIGHTED.

20

IT WAS ALREADY IN EXISTENCE, NUMBER ONE; AND NUMBER

THE COURT:

ALL RIGHT.

I'M SORT OF NOW TRYING

21

TO UNDERSTAND, AND MAYBE I DO HAVE A BETTER UNDERSTANDING

22

OF WHAT YOU ARE SAYING.

23

YOU ARE SAYING TO START OFF WITH THAT THE

24

COPYRIGHT THAT THEY HAVE, IN YOUR VIEW, IS MORE LIMITED IN

25

SCOPE AND DOES NOT -- CRITICALLY, DOES NOT COVER WHATEVER

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

51
1

IT IS THAT YOU WANT TO DO.

2

MR. RIFKIN:

3

THE COURT:

RIGHT.
BUT TO THE EXTENT THAT IT IS BROADER

4

IN SCOPE THAN YOU ASSERT, THEN THAT BROADER SCOPE IS

5

ITSELF INVALID.

6

MR. RIFKIN:

7

THE COURT:

8
9
10

CORRECT.
IS THAT A REASONABLE SUMMARY OF WHAT

YOU ARE SAYING?
MR. RIFKIN:
THE COURT:

THAT IS CORRECT, YOUR HONOR.
ALL RIGHT.

SO YOU ARE SAYING, TO

11

THE EXTENT THAT EITHER IT'S CLEAR NOW OR COULD BE MADE

12

CLEAR ON AMENDMENT, IF THAT IS YOUR ASSERTION AS TO YOUR

13

DECLARATORY RELIEF CLAIMS, YOU ARE AGREEABLE TO PUTTING

14

THAT UP TO AND INCLUDING BIFURCATION FOR PURPOSES OF

15

SUMMARY JUDGMENT; AND THEN THEREAFTER, WE'LL SEE, IN TERMS

16

OF WHETHER WE CAN THEN, AT THAT POINT, PERHAPS MAKE THE

17

HARD DECISIONS OF WHETHER WE HAVE TO HAVE YOUR LEGAL

18

CLAIMS TRIED FIRST AS OPPOSED TO THE EQUITABLE ONE, AND SO

19

FORTH AND SO ON, ALONG WITH ALL THE OTHER ISSUES THAT I

20

HAVE IDENTIFIED, INCLUDING WHETHER IT'S EVEN THAT

21

IMPORTANT TO YOU TO HAVE THOSE OTHER CLAIMS.

22

MR. RIFKIN:

23

AND DEPENDING UPON THE COURT'S RULING ON, FOR

CORRECT, YOUR HONOR.

24

EXAMPLE, THE QUESTION OF ATTORNEYS' FEES, AND ALSO PERHAPS

25

EVEN THE QUESTION OF THE STATUTE OF LIMITATIONS, IT MIGHT

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

52
1

OR MIGHT NOT MATTER TO US.

IT MAY, BUT --

2

THE COURT:

3

MR. RIFKIN:

4

AND AGAIN, I WOULD CAUTION YOU THAT WE DO HAVE

5

I UNDERSTAND.
-- IT MAY NOT.

THAT JURY TRIAL ISSUE.

6

BUT I JUST WANTED TO BE CLEAR THAT WHAT WE

7

UNDERSTOOD AND WHAT WE BELIEVE IS THE RIGHT WAY TO PROCEED

8

IS, IF THE COURT IS INCLINED TO BIFURCATE FOR

9

EFFICIENCY -- AND THAT MAKES SOME SENSE -- THEN IT SHOULD

10

BE COUNTS 1 AND 2, NOT JUST A DETERMINATION OF VALIDITY OR

11

INVALIDITY OF TWO COPYRIGHTS.

12

THE COURT:

MR. KLAUS, NOW THAT THERE IS, AT

13

LEAST IN MY MIND, A CLEARER UNDERSTANDING OF THE THEORY OF

14

THE PLAINTIFF IN TERMS OF THE REQUEST FOR DECLARATORY

15

RELIEF, WHAT IS YOUR VIEW TO HAVING THOSE TWO CLAIMS,

16

CAUSES OF ACTION CLAIM 1 AND 2, BIFURCATED, AT LEAST UNTIL

17

AND THROUGH SUMMARY JUDGMENT?

18

MR. KLAUS:

19

SO THE FIRST THING IS, I WOULD SAY, IT'S REALLY

20

THANK YOU, YOUR HONOR.

COUNT 1 THAT --

21

THE COURT:

THAT'S TRUE.

22

MR. KLAUS:

COUNT 2 IS REMEDIES.

23

THE COURT:

RIGHT.

24

MR. KLAUS:

SO I THINK IT SHOULD BE LIMITED TO

25

COUNT 2 IS REMEDIES.

COUNT 1.

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

53
1

THE SECOND THING I WOULD SAY, YOUR HONOR -- AND

2

THIS IS THE PROBLEM WITH HAVING THE COMPLAINT, IN EFFECT,

3

AMENDED ON THE FLY AT THE HEARING, IS I'M LOOKING AT

4

PARAGRAPH 97 OF THE COMPLAINT.

5

DEPOSIT COPY ANYWHERE IN THE COPYRIGHT OFFICE ON 51990.

6

MR. RIFKIN SAID THERE'S NO

PARAGRAPH 97 OF THE COMPLAINT, THEIR COMPLAINT,

7

THEIR WELL RESEARCHED COMPLAINT, SAYS THAT THERE WAS A

8

1935 APPLICATION.

9

SUMMY CLAIMED TO BE THE PROPRIETOR OF THE

10

COPYRIGHT AS A WORK FOR HIRE BY OREM, AND CLAIMED THE

11

COPYRIGHTED NEW MATTER AS ARRANGEMENT AS EASY PIANO SOLO,

12

PIANO ARRANGEMENT, WITH TEXT.

13

THE SHEET MUSIC DEPOSITED WITH THE APPLICATION

14

CREDITED OREM ONLY FOR THE ARRANGEMENT, NOT FOR ANY

15

LYRICS, AND DID NOT CREDIT THE HILL SISTERS WITH WRITING

16

THE LYRICS.

17

THE VERY NEXT SENTENCE IN THE COMPLAINT, FIRST

18

SENTENCE TO PARAGRAPH 98, "THE LYRICS TO 'HAPPY BIRTHDAY

19

TO YOU' WERE INCLUDED ON THE WORK REGISTERED WITH THE

20

COPYRIGHT OFFICE AS REGISTRATION NUMBER E51990."

21

NOW, I SUPPOSE, TO ANSWER YOUR QUESTION

22

DIRECTLY, YOUR HONOR, ABOUT WHETHER -- HOW WE FEEL ABOUT

23

THE SCOPE, AS MR. RIFKIN HAS DEFINED IT, OR NOT, I SUPPOSE

24

THAT'S FINE.

25

I WOULD LIKE TO KNOW HERE AND NOW IF MR. RIFKIN

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

54
1

IS WALKING AWAY FROM THE ALLEGATION IN THE COMPLAINT THAT

2

THE HILL SISTERS -- THAT THE WORK WAS NOT ORIGINAL TO

3

THEM, WHICH IS A CORE SECTION OF 102, COPYRIGHT ISSUE, AND

4

WHICH REALLY GOES TO THE QUESTION OF THE VALIDITY OF THE

5

COPYRIGHT, OR IF WHAT HE IS SAYING IS WE'RE NOT GOING TO

6

ALLEGE THAT THE LYRICS "HAPPY BIRTHDAY TO YOU," WHICH NOW,

7

YEARS LATER, HAVE BECOME QUITE POPULAR, WERE NOT

8

SUFFICIENTLY ORIGINAL UNDER THE TEST THAT THE SUPREME

9

COURT HAS LAID OUT IN FEIST TO QUALIFY AS ORIGINAL

10
11

COPYRIGHT MATTER.
IF HE'S GOING TO SAY THAT'S NO LONGER PART OF

12

OUR CASE AND WE'RE LIMITED TO THE SCOPE, IT WOULD BE

13

HELPFUL TO KNOW THAT NOW BEFORE --

14

THE COURT:

I DON'T THINK THAT HE'S SAYING THAT.

15

WHAT HE'S SAYING IS HE'S SAYING IT IS NOT LIMITED -- IT IS

16

BEYOND THE SCOPE.

17

LIMITED SCOPE, ONLY COVERING THE NEW MATERIAL, NOT

18

SOMETHING HE CARES ABOUT.

19

HE'S VIEWING YOUR COPYRIGHTS AS A MORE

IF HE LOSES ON THAT, THEN HE WILL -- SO THAT, IF

20

SOMEHOW, THERE'S A DETERMINATION, THEN NO, NO.

21

COPYRIGHTS DON'T JUST COVER THE NEW MATERIAL, IT COVERS

22

EVERYTHING.

23
24
25

THESE

THEN HE'S GOING TO SAY THAT THOSE COPYRIGHTS ARE
INVALID FOR THE REASONS THAT HE SET FORTH.
THAT'S THAT HE'S SAYING.

I MEAN -- I DON'T

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

55
1

THINK I AGREE.

2

THAT'S THAT TWO-STEP PROCESS, AND MAYBE IT'S JUST A MATTER

3

OF MAKING IT CLEAR ON AMENDMENT, BUT AT LEAST IT'S CLEAR

4

IN MY HEAD NOW THAT THAT'S WHAT HE'S SAYING.

WHEN I READ IT, IT WASN'T CLEAR TO ME THAT

5

AM I CORRECT IN THAT, MR. RIFKIN?

6

MR. RIFKIN:

YOU ARE CORRECT IN YOUR

7

UNDERSTANDING OF OUR ALLEGATIONS.

8

I THINK THE COMPLAINT SETS BOTH OUT.

9
10
11
12
13
14

THE COURT:
MR. RIFKIN:

I ONLY DISAGREE IN THAT

OKAY.
I DON'T THINK AMENDMENT IS

NECESSARY, BUT YOU CERTAINLY UNDERSTAND THE CLAIM.
THE COURT:

ALL RIGHT.

SO WITH THAT

UNDERSTANDING, TELL ME WHAT YOUR POINT IS.
MR. KLAUS:

IF IT'S THAT TWO-PART TEST, I DON'T

15

DISAGREE THAT, IF IT'S THE SCOPE AS ARTICULATED AND

16

VALIDITY OR NOT WITH RESPECT TO ORIGINALITY AND

17

INFRINGEMENT, THAT HAVING DISCOVERY LIMITED AND SUMMARY

18

JUDGMENT LIMITED TO THAT IN COUNT 1 OF THE COMPLAINT MAKES

19

A TREMENDOUS AMOUNT OF PRACTICAL SENSE.

20
21

THE COURT:

LIMITED TO (A) THE SCOPE, AND (B) IF

NOT THE SCOPE, THEN THE VALIDITY.

22

MR. KLAUS:

YES.

23

THE COURT:

ALL RIGHT.

CORRECT, YOUR HONOR.
WHAT IS YOUR VIEW AS TO

24

WHETHER IT IS SUFFICIENTLY CLEAR TO YOU THAT IT IS THIS

25

TWO-STEP THEORY FROM THE COMPLAINT AS CURRENTLY PLED?

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

56
1

MR. KLAUS:

THAT THE TWO-STEP THEORY WAS NOT

2

CLEAR TO ME FROM THE COMPLAINT, YOUR HONOR.

3

CLEAR FROM THE PARAGRAPHS THAT I JUST READ, WHICH SAY THAT

4

THERE IS A DEPOSIT COPY, WHICH SAY THAT THE LYRICS TO

5

"HAPPY BIRTHDAY TO YOU" WERE INCLUDED ON THAT WORK THAT

6

WAS REGISTERED WITH THE COPYRIGHT OFFICE.

AND IT'S NOT

7

THE COURT:

8

ONE IS ARE YOU CHALLENGING THEIR ASSERTION THAT,

9
10

THAT'S TWO DIFFERENT ISSUES.

AS TO ONE COPYRIGHT, THERE IS NO DEPOSIT COPY?
MR. KLAUS:

I FRANKLY DON'T -- I DON'T KNOW THE

11

ANSWER TO THE QUESTION AS TO IS WHETHER OR NOT, WITH

12

RESPECT TO 5 -- IT'S THE FIRST I'VE HEARD OF THE CLAIM

13

THAT THERE IS NO DEPOSIT COPY FOR 51990.

14
15
16
17

THE COURT:

HAVE YOU LOOKED INTO THIS, WHETHER

OR NOT THERE IS A DEPOSIT COPY FOR THAT?
MR. KLAUS:

YOUR HONOR, I HAVE NOT GONE TO THE

COPYRIGHT OFFICE TO LOOK TO SEE WHETHER THERE IS.

18

I HAVE LOOKED FOR THE REGISTRATION CERTIFICATES

19

WHICH WE HAVE, BUT ON THE QUESTION OF THE DEPOSIT COPY, I

20

JUST DON'T KNOW THE ANSWER TO THAT, YOUR HONOR.

21
22

THE COURT:

WHICH IS A SEPARATE QUESTION, I

THINK, FROM THIS TWO-STEP THEORY.

23

BECAUSE EVEN WITH RESPECT TO THE ONE WHERE THERE

24

IS INDISPUTABLY A DEPOSIT COPY, THAT IS STILL, MR. RIFKIN,

25

YOUR TWO-STEP THEORY, ISN'T IT?

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

57
1

MR. RIFKIN:

2

THE COURT:

3

CORRECT.
OKAY.

ALL RIGHT.

SO I SEE A LITTLE

BIT OF DIFFERENCE.

4

I MEAN, ONE IS JUST THE FACT THAT EITHER THE

5

COPYRIGHT OFFICE HAS THE DEPOSIT COPY OR NOT.

6

SOMEBODY, YOU KNOW -- AND WHAT THE CONSEQUENCES OF THAT,

7

AS TO THAT COPYRIGHT, I GUESS WE'LL HAVE TO LET THAT PLAY

8

OUT.

9

IS AND --

10

EITHER

BUT WE UNDERSTAND NOW THAT THAT'S WHAT THEIR THEORY

I'LL TELL YOU THIS, NOW, THAT I CLEARLY HAVE IN

11

MY MIND WHAT YOUR THEORY IS, MR. RIFKIN, I WILL REREAD

12

YOUR COMPLAINT TO SEE, IN MY MIND, IF THAT IS CLEAR.

13

IF IT IS NOT CLEAR, I AM GOING TO REQUIRE YOU TO

14

AMEND IT TO ABSOLUTELY SET IT FORTH CLEARLY THAT THAT IS

15

WHAT THAT IS.

16

AND THEN I BELIEVE WHAT WE CAN DO, AT THE

17

SCHEDULING CONFERENCE, IS TO HAVE A BIFURCATION OF ALL THE

18

STATE LAW CLAIMS TO ONE SIDE, THE DECLARATORY RELIEF --

19

ACTUALLY YOU ARE RIGHT.

20
21
22

CLAIM 1, BECAUSE THAT GOES TO THE HEART OF THIS.
IT'S NOT SO MUCH AS TO THE REMEDIES.
DO ALL THE DISCOVERY ON THAT.

IF THERE IS A

23

SUMMARY JUDGMENT MOTION, FILE IT, AND WE'LL DECIDE IT.

24

AND THEN, DEPENDING UPON WHAT HAPPENS THERE, WE'LL SEE

25

WHAT HAPPENS.

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

58
1

WITH THE REST OF IT, YOU CAN COME IN, WE'LL CHAT

2

MORE ABOUT IT.

3

CASE IS NOT GOING AWAY; SO LET'S TEE-UP CERTAIN THINGS

4

THAT WE WOULD HAVE TO TEE-UP, LIKE DO WE HAVE TO HAVE A

5

JURY TRIAL IN ADVANCE OF THE DISPOSITION OF THIS?

6

THERE SOME NON-APPLICABILITY OF THOSE OLD CASES TO OUR

7

SITUATION?

8
9
10
11

MAYBE AT THAT TIME YOU'LL SAY OKAY, THE

THAT MAY BE ONE.

IS

WE MAY HAVE TO TEE-UP SOME

OTHER THINGS, LIKE IS THERE GOING TO BE ATTORNEYS' FEES
THAT'S APPLICABLE.
ANOTHER ONE MAY BE IF IT WERE DECIDED AGAINST

12

THE PLAINTIFF ON THE DECLARATORY RELIEF, DOES THAT PREVENT

13

THE PLAINTIFFS WHO ARE BARRED FROM THE DECLARATORY RELIEF

14

ACTION FROM RESURRECTING IT UNDER A FOUR-YEAR STATE

15

STATUTE OF LIMITATIONS, A NECESSARY ELEMENT OF WHICH IS

16

THE ISSUE JUST DECIDED IN THE DECLARATORY RELIEF, AND THEN

17

WE CAN GO FORWARD AND SEE WHETHER THERE'S ANY NECESSITY TO

18

HAVE STATE LAW CLAIMS?

19
20
21

IF SO, THEN AT THAT TIME WE CAN REACH THE ISSUES
OF PREEMPTION, SUFFICIENCY OF PLEADING, WHATEVER.
I'M HOPING THAT -- UNFORTUNATELY, I DIDN'T THINK

22

OF ALL OF THIS BEFORE I WORKED UP THE PREEMPTION.

23

REALLY WOULD RATHER, IN SOME WAYS, GET THIS DONE, BUT I

24

DON'T THINK IT MAKES A WHOLE LOT OF SENSE FOR US TO DO

25

THAT AT THIS POINT.

I

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

59
1
2

SO ANYTHING FURTHER AS FAR AS YOU ARE
CONCERNED?

3

MR. KLAUS:

NO, NO.

4

THE COURT:

OKAY.

5

MR. RIFKIN:

6

PROCEDURAL QUESTIONS.

7

THANK YOU, YOUR HONOR.
ANYTHING FURTHER, MR. RIFKIN?

YOUR HONOR, JUST A COUPLE OF

WE'RE OBVIOUSLY -- IF THE COURT WANTS US TO

8

CLARIFY ANYTHING IN THE COMPLAINT, WE'RE PREPARED TO DO

9

THAT.

10

WE REALLY THINK IT'S SPELLED OUT HERE, BUT IF

11

THE COURT THINKS IT WOULD BE HELPFUL TO HAVE THIS SPELLED

12

OUT MORE CLEARLY, WE'RE HAPPY TO DO THAT.

13
14
15

JUST TWO PROCEDURAL ISSUES.

NUMBER ONE, WE

HAVE -THE COURT:

YOU KNOW WHAT, BEFORE YOU DO THAT,

16

WHY DON'T YOU TELL ME NOW PRECISELY WHAT PARAGRAPHS I

17

SHOULD CONCENTRATE ON RATHER THAN REREADING THE WHOLE

18

THING LOOKING FOR IT.

19

WHY DON'T YOU TELL ME WHERE I REALLY OUGHT TO

20

CONCENTRATE ON, WHAT PARAGRAPH TO WHAT PARAGRAPH THAT YOU

21

BELIEVE FAIRLY SETS FORTH THIS SO-CALLED TWO-STEP THEORY.

22

AND THEN I'LL REREAD IT AGAIN AND SAY OKAY, NOW

23

IN LIGHT OF HE TOLD ME, OKAY, I THINK THAT'S CLEAR HERE OR

24

SUFFICIENTLY CLEAR.

25

THEN WE'LL JUST MOVE AHEAD.

IF IT IS NOT, THEN I'LL SAY OKAY, YOU'RE GOING

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

60
1

TO HAVE TO AMEND THIS TO TELL IT TO ME IN SO MANY WORDS,

2

AND THEN WE'LL MOVE AHEAD.

3

MR. RIFKIN:

RIGHT.

WELL, YOUR HONOR, I ALREADY

4

DIRECTED THE COURT TO PARAGRAPH 93, WHICH WE THINK MAKES

5

THAT PRETTY CLEAR.

6

MR. KLAUS DIRECTED THE COURT'S ATTENTION TO

7

PARAGRAPH 97, WHICH I ALSO THINK EXPLAINS THAT THERE WAS A

8

LIMITATION ON THE CLAIM OF THE COPYRIGHT.

9
10

PARAGRAPH 98 SAYS THE SAME THING.

IT SAYS THE

LYRICS TO "HAPPY BIRTHDAY TO YOU" --

11

THE COURT:

12

JUST TELL ME THE NUMBERS, AND THEN I'M GOING TO

13
14

DON'T READ IT TO ME.

READ IT TO MYSELF IN THE QUIET OF MY CHAMBERS.
MR. RIFKIN:

I THINK THE EASIEST THING TO DO IS

15

TO DIRECT YOUR HONOR TO THE SECTION THAT BEGINS ON

16

PAGE 13, PARAGRAPH 75, UNDER THE HEADING "APPLICATIONS FOR

17

COPYRIGHT FOR NEW MUSICAL ARRANGEMENT."

18

THE COURT:

19

MR. RIFKIN:

OKAY, 75 THROUGH -AND THAT SECTION GOES THROUGH

20

PARAGRAPH 110 ON PAGE 18.

21

THOSE COPYRIGHT APPLICATIONS IN 1935.

22

THE COURT:

AND THAT TRACES THE HISTORY OF
AND I THINK --

WELL, THAT TRACES IT, BUT WHERE WILL

23

I FIND YOUR ASSERTIONS AS TO HOW IT IS THAT WILL ANIMATE

24

YOUR DECLARATORY RELIEF?

25

MR. RIFKIN:

WELL YOUR HONOR, IT'S THROUGHOUT.

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

61
1

FOR EXAMPLE, PARAGRAPH 7 OF THE COMPLAINT SAYS,

2

"IRREFUTABLE DOCUMENTARY EVIDENCE, SOME DATING BACK TO

3

1893, SHOW THAT THE COPYRIGHT TO 'HAPPY BIRTHDAY TO YOU,'

4

IF THERE EVER WAS A VALID COPYRIGHT TO ANY PART OF THAT

5

SONG" --

6

THE COURT:

7

RATHER THAN HAVE YOU DO IT ON THE FLY, IN TWO

8

LET ME DO THIS.

DAYS SEND A SUBMISSION TO ME.

9

FILE IT, BASICALLY SAY AS A FOLLOW-UP, WE

10

SUGGEST THAT THE COURT PARTICULARLY REVIEW THESE

11

PARAGRAPHS IN WHICH WE BELIEVE, WHEN READ IN CONTEXT,

12

SUFFICIENTLY SETS FORTH THE GIST OF OUR TWO-STEP THEORY.

13

AND THEN I WILL LOOK AT THAT.

I WILL LOOK AT

14

IT.

15

LOOKING AT OTHER PLACES TO -- FOR CONTEXT.

16

MAY END UP REREADING THE WHOLE THING ANYWAY.

17

IT WILL GIVE ME A GOOD START.

AND THEN I'LL SAY, IF I'M NOT CLEAR ON IT, I'LL START
WHO KNOWS.

I

BUT AT LEAST

OKAY.

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MR. RIFKIN:

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AND THEN, YOUR HONOR, JUST TO MAKE SURE THAT WE

OF COURSE.

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ALL KNOW, THERE ARE A COUPLE OF PROCEDURAL ISSUES.

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NUMBER ONE, WE NEED TO HAVE A PRETRIAL CONFERENCE IF WE'RE

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GOING TO PROCEED WITH DISCOVERY.

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THE COURT:

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MR. RIFKIN:

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I UNDERSTAND THAT.
AND THEN NUMBER TWO, WE ARE

PRESENTLY RELIEVED FROM THE OBLIGATION OF FILING THE CLASS

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

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CERTIFICATION MOTION.

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THE COURT:

I PRESUME THAT -WE WILL DISCUSS IT AT THE TIME OF

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THE SCHEDULING CONFERENCE, BUT WE'RE NOT GOING TO HAVE A

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SCHEDULING CONFERENCE UNTIL I DETERMINE WHETHER OR NOT YOU

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NEED TO FILE A AMENDMENT.

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IF YOU DETERMINE YOU DON'T NEED TO FILE AN

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AMENDMENT, THEN I WILL ISSUE AN ORDER BIFURCATING THAT

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CLAIM, CLAIM 1, AND DIRECTING COUNSEL TO ANSWER IT.

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THEN WE'LL HAVE A SCHEDULING CONFERENCE.

AND

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MR. RIFKIN:

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THE COURT:

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MR. RIFKIN:

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THE COURT:

ALL RIGHT.

MR. KLAUS:

I THINK THAT WAS JUST ANSWERED IN

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VERY WELL, YOUR HONOR.
WE'LL DO ALL THE REST OF IT.

OKAY.

THANK YOU.
MR. KLAUS, ANYTHING

FURTHER?

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THE EXCHANGE WITH MR. RIFKIN THAT, IF WE ARE PROCEEDING IN

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THE BIFURCATED WAY, THEN WE WOULD MAKE ARRANGEMENTS FOR

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CLASS CERTIFICATION DISCOVERY AND PROCEDURES TO BE A PART

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OF A LATER PROCEEDING, BECAUSE THIS IS A PURPORTED

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CLASS-ACTION COMPLAINT.

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THE COURT:

WELL, THERE'S NO REASON WHY WE CAN'T

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HAVE A CLASS CERTIFICATION AT THIS POINT LIMITED TO THE

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CLAIM 1.

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MR. KLAUS:

WHICH THAT WOULD -- THE CLAIM 1

WOULD BE THERE, BUT I'M TALKING ABOUT THE ISSUES OF CLASS

NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

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CERTIFICATION THAT --

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THE COURT:

OH, IF WE NEED TO GO TO ALL OF THOSE

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OTHER CLAIMS, IF WE GO TO THOSE OTHER CLAIMS, WE CLEARLY

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WILL REVISIT WHETHER OR NOT THE CLASS WOULD BE CERTIFIABLE

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AND/OR WHAT THE PARAMETERS WOULD BE FOR THAT.

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NEED TO GET TO THAT YET.

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WE DON'T

I THINK WE ARE JUST TALKING ABOUT, CLEARLY,
CLAIM 1.

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MR. KLAUS:

WOULD WE ALSO, AT THE SCHEDULING

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CASE, THE CASE MANAGEMENT CONFERENCE THAT YOUR HONOR HAS

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DESCRIBED, WE WOULD BE DISCUSSING THE PARAMETERS OF WHAT

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CLASS CERTIFICATION IS TO NUMBER AS TO THE FIRST CLAIM

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WOULD BE?

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THE COURT:

YES.

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MR. KLAUS:

YES.

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THE COURT:

ALL RIGHT.

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YES.

OKAY.

THANK YOU VERY MUCH,

COUNSEL.

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MR. RIFKIN:

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THE CLERK:

THANK YOU, YOUR HONOR.
THIS COURT NOW STANDS IN RECESS.

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(RECESS AT 10:51 A.M.)

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--OOO--

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NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.

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CERTIFICATE

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I HEREBY CERTIFY THAT PURSUANT TO SECTION 753,

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TITLE 28, UNITED STATES CODE, THE FOREGOING IS A TRUE AND

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CORRECT TRANSCRIPT OF THE STENOGRAPHICALLY REPORTED

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PROCEEDINGS HELD IN THE ABOVE-ENTITLED MATTER AND THAT THE

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TRANSCRIPT PAGE FORMAT IS IN CONFORMANCE WITH THE

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REGULATIONS OF THE JUDICIAL CONFERENCE OF THE UNITED

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STATES.

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DATED THIS 11TH DAY OF OCTOBER, 2013.

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/S/ MARY RIORDAN RICKEY
MARY RIORDAN RICKEY
OFFICIAL COURT REPORTER

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NO. CV 13-4460-GHK / MARYA, et al., versus WARNER CHAPPELL, INC., et al.