Good Morning to You Productions v. Warner/Chappell Music, No. 13-cv-4460 (S.D. Cal): Manifold Decl...
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FRANCIS M. GREGOREK (144785) [email protected] BETSY C. MANIFOLD (182450) [email protected] RACHELE R. RICKERT (190634) [email protected] MARISA C. LIVESAY (223247) [email protected] WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 Interim Lead Class Counsel for Plaintiffs and Proposed Class UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION GOOD MORNING TO YOU PRODUCTIONS CORP., et al., Plaintiffs, v. WARNER/CHAPPELL MUSIC, INC., et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Lead Case No. CV 13-04460-GHK (MRWx) DECLARATION OF BETSY C. MANIFOLD IN SUPPORT OF PLAINTIFFS’ EX PARTE APPLICATION TO HAVE THE COURT CONSIDER NEWLY DISCOVERY EVIDENCE “MISTAKENLY” WITHHELD BY DEFENDANTS DURING DISCOVERY AND ENTER SUMMARY JUDGMENT IN PLAINTIFFS’ FAVOR Judge: Hon. George H. King, Chief Judge Courtroom: 650 Fact Discovery Cutoff: July 11, 2014 MSJ Hearings March 23, 2015 and July 29, 2015 Pretrial Conference: N/A Trial: N/A Case 2:13-cv-04460-GHK-MRW Document 225 Filed 07/27/15 Page 1 of 6 Page ID #:7121
description
Includes scans of 1922 and 1927 songbooks
Transcript of Good Morning to You Productions v. Warner/Chappell Music, No. 13-cv-4460 (S.D. Cal): Manifold Decl...
FRANCIS M. GREGOREK (144785) [email protected] BETSY C.
MANIFOLD (182450) [email protected] RACHELE R. RICKERT (190634)
[email protected] MARISA C. LIVESAY (223247) [email protected] WOLF
HALDENSTEIN ADLER
FREEMAN & HERZ LLP 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599
Interim Lead Class Counsel for Plaintiffs and Proposed Class
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CONSIDER NEWLY DISCOVERY
MSJ Hearings March 23, 2015
and July 29, 2015
Trial: N/A
I, Betsy C. Manifold, hereby declare as follows:
1. I am an attorney duly licensed to practice law in the States of California,
New York, and Wisconsin, and before this Court. I am a partner with the law firm
Wolf Haldenstein Adler Freeman & Herz LLP, interim lead class counsel for
plaintiffs and the class. I have personal knowledge of the following facts, and if
called upon to do so, I could and would competently testify as to them.
2. I submit this declaration in support of Plaintiffs’ Ex Parte Application to
have the Court Consider Newly Discovery Evidence “Mistakenly” Withheld by
Defendants during Discovery and Enter Summary Judgment in Plaintiffs’ Favor.
NOTICE OF EX PARTE APPLICATION PURSUANT TO L.R. 7-19.1
3. On July 24, 2015, at approximately 1:20 pm, I notified Defendants’
counsel, Kelly Klaus and Adam Kaplan, that Plaintiffs intended to file an ex parte
application asking the Court to consider newly discovered evidence mistakenly
withheld by Defendants during discovery as well as evidence discovered by Plaintiffs
directly related to Defendants’ newly discovered evidence and to enter summary
judgment in Plaintiffs’ favor based on the applicable law. After scanned versions of
the relevant pages to be submitted were sent by me to Defendants’ counsel at
approximately at 2:00 p.m. on same day, Defendants’ counsel advised me in writing
that Defendants do not oppose the submission of this evidence (Exhibits A-C) by
Plaintiffs. Defendants will oppose in writing the entry of summary judgment in
Plaintiffs’ favor. Mr. Klaus requested that I attach a copy of his July 24, 2015 e-
mail to my declaration, a copy of which is attached hereto as Exhibit F.
4. On July 27, 2015, Plaintiffs electronically served a copy of this ex parte
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SUMMARY JUDGMENT MOTIONS
5. The Court initially set the fact discovery deadline for June 27,
2014. (Dkt. 92), which was extended by Magistrate Judge Wilner, in connection
with this Court, and at the request of both parties, to July 11, 2014. (Dkt. 119).
6. On November 25, 2014, the parties filed Joint Cross-Motions for
Summary Judgment (Dkt. 179, 181, 182), a Joint Statement of Uncontroverted Facts
(Dkt. 180, 183), and an extensive Joint Evidentiary Appendix (Dkt. 167-178) (which
was amended by Court Order and re-filed). (Dkt. 185, 187-195). Oral argument was
held on March 23, 2015. (Dkt. 207).
7. On May 18, 2015, the Court ordered further briefing on the issue of
abandonment (Dkt. 215) which was submitted pursuant to Stipulation and Court
Order by the parties on June 15, 2015 (Dkt. 217, 219). In the May 18, 1925 Order,
the Court stated that “The Parties shall not submit any new evidence.” Dkt. At 215 at
1. Oral argument on the Supplemental Briefing is now set for July 29, 2015. (Dkt.
222).
AFTER JULY 2014 DISCOVERY CUT-OFF
8. Nearly one year after the close of fact discovery, on July 9, 2015,
Defendants advised Plaintiffs that they were providing a supplemental production of
documents. Due to technical issues, Plaintiffs were unable to access the secure
production link until July 13, 2015.
9. On July 13, 2015, Plaintiffs were finally able to access the secure
database link of approximately 500 pages of documents, including approximately
200 pages of documents they claim were “mistakenly” not produced during
discovery. After a quick initial review of the documents, on the same day, Plaintiffs
advised Defendants that they did not consent to Defendants’ submission of any new
evidence to the Court in further support of their motion for summary judgment.
10. The supplemental production by Defendants included blurred pages
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from The EVERYDAY Song Book (1927 edition) which included the Good Morning
and Birthday Song. See Exhibit A below. Other documents “mistakenly” produced
by Defendants also support Plaintiffs’ argument that the two copyrights in question,
E51988 and E51990, are limited to the arrangements written by Summy’s
employees as works-for-hire and the obscure second verse written by one of those
employees. One of the documents is a call sheet for E51990, an internal document
that identifies the copyrighted work as a piano arrangement of the earlier work Good
Morning to All. Since the only common element between Good Morning and Happy
Birthday is the shared melody, this document is an admission that E51990 covered
only that particular piano arrangement of the shared melody, which has been
Plaintiffs’ position since the beginning of this case.
11. Thereafter, Plaintiffs sought to obtain a clear version of the page from
The EVERYDAY Song Book (1927 edition) containing the Good Morning and
Birthday Song. On July 21, 2015, Plaintiffs contacted the Center for American
Music at the University of Pittsburgh to see if an original copy of the Song Book was
available. See Exhibit B below.
12. On July 23, 2015, the University of Pittsburgh found a copy in their
archives and provided clear scanned copies of the relevant pages from The
EVERYDAY Song Book (1927 edition) containing the Good Morning and Birthday
Song. Id . The Good Morning and Birthday Song had the following language:
“Special permission through courtesy of The Clayton F. Summy Co.” Id . Unlike
other individual works in the book, for which a copyright was identified, no
copyright was claimed or identified for the Good Morning and Birthday Song.
13. After seeing this language, Plaintiffs then searched and located a 1922
edition of The EVERYDAY Song Book with the same publication of Good Morning
and Birthday Song and same language. On July 24, 2015, Plaintiffs received a copy
of The EVERYDAY Song Book and copies of the relevant pages are attached to this
declaration. See Exhibit C below.
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12. On July 21, 2015, Plaintiffs also e-mailed Defendants and requested an
opportunity to review the originals of Defendants’ late supplemental production. On
July 22, 2015, Defendants offered to allow Plaintiffs to inspect the microfiche from
which the copies were produced and again produced a blurred copy of the relevant
pages from The EVERYDAY Song Book (1927 edition) which included the Good
Morning and Birthday Song.
NEED FOR EXTRORDINARY RELIEF
13. Plaintiffs are mindful of the Court’s order directing the parties not to
supplement the summary judgment record when they submitted their supplemental
joint brief on whether Patty Hill abandoned any copyright to the Happy Birthday
lyrics. However, because the documents prove conclusively that the song is in the
public domain, thus making it unnecessary for the Court to decide the scope or
validity of the disputed copyrights, much less whether Patty Hill abandoned any
copyright she may have had to the lyrics – indeed, all those issues become moot –
Plaintiffs are compelled to bring them to the Court’s attention now, before more time
is needlessly spent on the pending cross-motions for summary judgment.
14. Absent this relief, the Court will waste judicial resources in determining
and hearing further argument on the extensive cross-motions for summary judgment
filed by the parties in November 2014. Here, evidence withheld by Defendants
during discovery and during the extensive briefing of the cross-motions and newly
discovered evidence by Plaintiffs directly related to Defendants’ supplemental
production readily resolves the key issues in Plaintiffs’ favor and should be
considered in the interest of justice.
15. Plaintiffs are not at fault in the need for this ex parte relief, any
prejudice to Defendants was created by their own conduct in “mistakenly”
withholding evidence and good cause exists for the review of this newly discovered
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EXHIBITS
16. Attached hereto are true and correct copies of the following documents:
Exhibit A: Relevant pages from Defendants’ Supplemental Production, first
accessed by Plaintiffs on July 13, 2015, including pages from 1927 version of
“The EVERDAY Song Book ” showing the Good Morning and Birthday Song
(WC2397-2400);
Exhibit B: July 23, 2015 e-mail from Linda Tashbook (University of
Pittsburgh) to Mark Rifkin attaching scanned pages from the 1927 version of “ The
EVERYDAY Song Book ” showing the Good Morning and Birthday Song;
Exhibit C: Copies of the relevant pages from 1922 version of “The
EVERYDAY Song Book ” which pages showing the Good Morning and Birthday
Song;
Exhibit D: Copyright Reg. No. A453345, for the first edition of The
EVERYDAY Song Book , filed on Aug. 5, 1916 (which did not include the Good
Morning and Birthday Song);
Exhibit E: Copyright Reg. No. A624750 for revised edition of The
EVERYDAY Song Book , filed on Oct. 6, 1921 (which included the Good Morning
and Birthday Song); and
Exhibit F: July 24, 2015 Electronic Mail exchange between Plaintiffs’
counsel (Betsy Manifold and Mark Rifkin) and Defendants’ Counsel (Kelly Klaus
and Adam Kaplan).
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 27th day of July 2015, in the City of San Diego, State of California.
By: /s/ Betsy C. Manifold
BETSY C. MANIFOLD
WARNER/CHAPPELL:21973.decl.bcm
EXHIBIT A
EXHIBIT A
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EXHIBIT A
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Case 2:13-cv-04460-GHK-MRW Document 225-1 Filed 07/27/15 Page 2 of 5 Page ID #:7128
CONFIDENTIAL WC0002397
EXHIBIT A
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Case 2:13-cv-04460-GHK-MRW Document 225-1 Filed 07/27/15 Page 3 of 5 Page ID #:7129
CONFIDENTIAL WC0002398
EXHIBIT A
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CONFIDENTIAL WC0002399
EXHIBIT A
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Case 2:13-cv-04460-GHK-MRW Document 225-1 Filed 07/27/15 Page 5 of 5 Page ID #:7131
CONFIDENTIAL WC0002400
EXHIBIT B
EXHIBIT B
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EXHIBIT B
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EXHIBIT B
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EXHIBIT B
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To: Rifkin, Mark
Subject: RE: Everyday Songbook
Here you go. It has the "good morning" lyrics and the "happy birthday" lyrics. Surely the copyright hasn't lasted this
long.
To: Tashbook, Linda <[email protected]>
Subject: RE: Everyday Songbook
The race is on! Thanks so much for all your help.
Original Message
To: Rifkin, Mark
Subject: Re: Everyday Songbook
The 1927 edition is in a storage facility off campus. I can ask them to send it to me and I can scan the pages, but it'll take
a day or two for the book to get here. You might have the copy you ordered by then. We can race. I'll send you the
scans a.s.a.p.
To: Tashbook, Linda
Subject: RE: Everyday Songbook
Linda, this was very helpful, but unfortunately the first edition of the book does not include the work we were looking
for (but we needed to confirm whether it did). Would you mind asking the Associate Director of the Center for
EXHIBIT B
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American Music to copy the page including Song # 16, which is entitled "Good Morning and Birthday Song," from the
1927 edition of the same book? The call number for the later edition is Nietz 5016799.
Again, many thanks.
To: Rifkin, Mark
Hi Mark,
As you can see, the Associate Director of the Center for American Music conducted this research herself. I hope this
result is helpful to your case.
Linda
Foreign International Comparative Law Librarian Barco Law Library University of Pittsburgh School of Law
3900 Forbes Avenue Pittsburgh, Pennsylvania 15260
Phone (412) 6481303 Fax (412) 6481352
View my research on my SSRN Author page:
http://ssrn.com/author=549071
Original Message
To: Tashbook, Linda
Subject: Everyday Songbook
Linda,
Attached are scans of the cover, index and title page of M1994 E947 1916, The Everyday Song Book. Unfortunately, I've
been unable to locate "Happy Birthday" or "Good Morning to You" in this score.
Best,
http://www.pitt.edu/~amerimus/foster.htm
EXHIBIT B
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a
&
EXHIBIT D
EXHIBIT D
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York.
Dec.
30,
1916
Everyday songbook
Dec.
28,
E.
EXHIBIT D
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EXHIBIT E
EXHIBIT E
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U.
EXHIBIT E
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EXHIBIT F
EXHIBIT F
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From: Manifold, Betsy Sent: Friday, July 24, 2015 7:00 PM To: 'Klaus, Kelly'; Kaplan, Adam Cc: Rifkin, Mark Subject: RE: Warner Chappell: Plaintiffs' Ex Parte Application based on 1922 and 1927 Everyday Song Book
Kelly –
Received your email and will inform the Court of your position. As agreed (and noted below), Plaintiffs will not file
WC23972400 under seal. I will send you a copy of the papers via email before we file with the Court. We plan to file
Monday morning as early as practicable.
Plaintiffs do not agree that that the certified copies of the deposit copy and copyright receipt that Warner Chappell
recently obtained from the British Library should be submitted to the Court in advance of the hearing on
Wednesday. Pursuant to L.R. 79, Plaintiffs will oppose Warner Chappell’s motion (Dkt. 223) to supplement the record
with those materials.
Betsy
From: Klaus, Kelly [mailto:[email protected]] Sent: Friday, July 24, 2015 6:47 PM To: Manifold, Betsy; Kaplan, Adam Cc: Rifkin, Mark Subject: RE: Warner Chappell: Plaintiffs' Ex Parte Application based on 1922 and 1927 Everyday Song Book
Hi Betsy –
Thanks for your email, and for forwarding the documents.
Warner Chappell does not object to Plaintiffs’ submission of the documents that you forwarded. (Warner Chappell also
does not object to your filing WC 23972400 not under seal.) Warner Chappell does not agree that these documents
warrant the grant of summary judgment in Plaintiffs’ favor. When we spoke this afternoon, I asked you on what basis a
publication of the lyrics to Happy Birthday to You by a third party, even if in fact done with the “special permission” of
Summy (a point that we do not concede), would divest the common law copyright in those lyrics held by its authors,
Mildred and Patty Hill, given that nothing in the Everyday Song Book (or anything else of which we are aware) provides
any evidence of the Hills’ authorization. You told me that you were not prepared to discuss your legal arguments in that
regard, but rather only wanted to know Warner Chappell’s position regarding Plaintiffs’ request to submit the pages
from the Everyday Song Book. Whatever your argument is in regard to Plaintiffs’ motion for summary judgment,
Warner Chappell would like the opportunity to review it and to respond in writing prior to arguing the matter before the
Court.
In addition, Warner Chappell requests that Plaintiffs agree that the certified copies of the deposit copy and copyright
receipt that Warner Chappell recently obtained from the British Library also be submitted to the Court in advance of the
hearing on Wednesday. Warner Chappell filed a motion to supplement the record with those materials yesterday (Dkt.
No. 223), but unlike your application, that motion was noticed for hearing in the ordinary course. If Plaintiffs are going
to be making new, nonabandonment arguments to the Court on Wednesday, we think that the deposit copy also
should be before the Court, since it is highly relevant to the issues relating to summary judgment and supportive of
Warner Chappell’s motion. In particular, the certified copy of the sheet music for Happy Birthday to You! from the
British Library is compelling corroborative proof that Summy deposited the same sheet music (with the same “familiar
lyrics” to Happy Birthday to You!) with the U.S. Copyright Office on the same date, December 6, 1935. Please let us
know if Plaintiffs are agreeable to this request.
Please inform the Court of our position in response to your request; please attach a copy of this email to your
submission; and please provide us with your submission as soon as it is ready, so that we can consider our response to
your legal arguments.
Thanks, and regards,
Kelly
From: Manifold, Betsy [mailto:[email protected]] Sent: Friday, July 24, 2015 2:02 PM To: Klaus, Kelly; Kaplan, Adam Cc: Rifkin, Mark Subject: Warner Chappell: Plaintiffs' Ex Parte Application based on 1922 and 1927 Everyday Song Book
Counsel: As discussed, attached are the relevant pages from both the 1922 and 1927 Everyday Song Book. The clear
1927 version was located in the University of Pittsburgh music library and provided by one of their research librarians
yesterday. The language blurred in the 1927 copy provided by Defendants (even in today’s rescanned version) shows
Happy Birthday was published therein with “Special permission through courtesy of The Clayton F. Summy Co.” This
lead us to locate an earlier 1922 version of the Everyday Song Book which contains the same language.
We would like to submit this new evidence to the Court via ex parte application (today or Monday) and argue that it
warrants the grant of Summary Judgment in Plaintiffs’ favor. Please advise whether you oppose the submission of this
new evidence to the Court and will oppose Plaintiffs’ argument re: summary judgment so I can put Defendants’ position
in our ex parte application.
Thanks,
Betsy
EXHIBIT F
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FREEMAN & HERZ LLP 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599
Interim Lead Class Counsel for Plaintiffs and Proposed Class
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CONSIDER NEWLY DISCOVERY
MSJ Hearings March 23, 2015
and July 29, 2015
Trial: N/A
I, Betsy C. Manifold, hereby declare as follows:
1. I am an attorney duly licensed to practice law in the States of California,
New York, and Wisconsin, and before this Court. I am a partner with the law firm
Wolf Haldenstein Adler Freeman & Herz LLP, interim lead class counsel for
plaintiffs and the class. I have personal knowledge of the following facts, and if
called upon to do so, I could and would competently testify as to them.
2. I submit this declaration in support of Plaintiffs’ Ex Parte Application to
have the Court Consider Newly Discovery Evidence “Mistakenly” Withheld by
Defendants during Discovery and Enter Summary Judgment in Plaintiffs’ Favor.
NOTICE OF EX PARTE APPLICATION PURSUANT TO L.R. 7-19.1
3. On July 24, 2015, at approximately 1:20 pm, I notified Defendants’
counsel, Kelly Klaus and Adam Kaplan, that Plaintiffs intended to file an ex parte
application asking the Court to consider newly discovered evidence mistakenly
withheld by Defendants during discovery as well as evidence discovered by Plaintiffs
directly related to Defendants’ newly discovered evidence and to enter summary
judgment in Plaintiffs’ favor based on the applicable law. After scanned versions of
the relevant pages to be submitted were sent by me to Defendants’ counsel at
approximately at 2:00 p.m. on same day, Defendants’ counsel advised me in writing
that Defendants do not oppose the submission of this evidence (Exhibits A-C) by
Plaintiffs. Defendants will oppose in writing the entry of summary judgment in
Plaintiffs’ favor. Mr. Klaus requested that I attach a copy of his July 24, 2015 e-
mail to my declaration, a copy of which is attached hereto as Exhibit F.
4. On July 27, 2015, Plaintiffs electronically served a copy of this ex parte
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SUMMARY JUDGMENT MOTIONS
5. The Court initially set the fact discovery deadline for June 27,
2014. (Dkt. 92), which was extended by Magistrate Judge Wilner, in connection
with this Court, and at the request of both parties, to July 11, 2014. (Dkt. 119).
6. On November 25, 2014, the parties filed Joint Cross-Motions for
Summary Judgment (Dkt. 179, 181, 182), a Joint Statement of Uncontroverted Facts
(Dkt. 180, 183), and an extensive Joint Evidentiary Appendix (Dkt. 167-178) (which
was amended by Court Order and re-filed). (Dkt. 185, 187-195). Oral argument was
held on March 23, 2015. (Dkt. 207).
7. On May 18, 2015, the Court ordered further briefing on the issue of
abandonment (Dkt. 215) which was submitted pursuant to Stipulation and Court
Order by the parties on June 15, 2015 (Dkt. 217, 219). In the May 18, 1925 Order,
the Court stated that “The Parties shall not submit any new evidence.” Dkt. At 215 at
1. Oral argument on the Supplemental Briefing is now set for July 29, 2015. (Dkt.
222).
AFTER JULY 2014 DISCOVERY CUT-OFF
8. Nearly one year after the close of fact discovery, on July 9, 2015,
Defendants advised Plaintiffs that they were providing a supplemental production of
documents. Due to technical issues, Plaintiffs were unable to access the secure
production link until July 13, 2015.
9. On July 13, 2015, Plaintiffs were finally able to access the secure
database link of approximately 500 pages of documents, including approximately
200 pages of documents they claim were “mistakenly” not produced during
discovery. After a quick initial review of the documents, on the same day, Plaintiffs
advised Defendants that they did not consent to Defendants’ submission of any new
evidence to the Court in further support of their motion for summary judgment.
10. The supplemental production by Defendants included blurred pages
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from The EVERYDAY Song Book (1927 edition) which included the Good Morning
and Birthday Song. See Exhibit A below. Other documents “mistakenly” produced
by Defendants also support Plaintiffs’ argument that the two copyrights in question,
E51988 and E51990, are limited to the arrangements written by Summy’s
employees as works-for-hire and the obscure second verse written by one of those
employees. One of the documents is a call sheet for E51990, an internal document
that identifies the copyrighted work as a piano arrangement of the earlier work Good
Morning to All. Since the only common element between Good Morning and Happy
Birthday is the shared melody, this document is an admission that E51990 covered
only that particular piano arrangement of the shared melody, which has been
Plaintiffs’ position since the beginning of this case.
11. Thereafter, Plaintiffs sought to obtain a clear version of the page from
The EVERYDAY Song Book (1927 edition) containing the Good Morning and
Birthday Song. On July 21, 2015, Plaintiffs contacted the Center for American
Music at the University of Pittsburgh to see if an original copy of the Song Book was
available. See Exhibit B below.
12. On July 23, 2015, the University of Pittsburgh found a copy in their
archives and provided clear scanned copies of the relevant pages from The
EVERYDAY Song Book (1927 edition) containing the Good Morning and Birthday
Song. Id . The Good Morning and Birthday Song had the following language:
“Special permission through courtesy of The Clayton F. Summy Co.” Id . Unlike
other individual works in the book, for which a copyright was identified, no
copyright was claimed or identified for the Good Morning and Birthday Song.
13. After seeing this language, Plaintiffs then searched and located a 1922
edition of The EVERYDAY Song Book with the same publication of Good Morning
and Birthday Song and same language. On July 24, 2015, Plaintiffs received a copy
of The EVERYDAY Song Book and copies of the relevant pages are attached to this
declaration. See Exhibit C below.
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12. On July 21, 2015, Plaintiffs also e-mailed Defendants and requested an
opportunity to review the originals of Defendants’ late supplemental production. On
July 22, 2015, Defendants offered to allow Plaintiffs to inspect the microfiche from
which the copies were produced and again produced a blurred copy of the relevant
pages from The EVERYDAY Song Book (1927 edition) which included the Good
Morning and Birthday Song.
NEED FOR EXTRORDINARY RELIEF
13. Plaintiffs are mindful of the Court’s order directing the parties not to
supplement the summary judgment record when they submitted their supplemental
joint brief on whether Patty Hill abandoned any copyright to the Happy Birthday
lyrics. However, because the documents prove conclusively that the song is in the
public domain, thus making it unnecessary for the Court to decide the scope or
validity of the disputed copyrights, much less whether Patty Hill abandoned any
copyright she may have had to the lyrics – indeed, all those issues become moot –
Plaintiffs are compelled to bring them to the Court’s attention now, before more time
is needlessly spent on the pending cross-motions for summary judgment.
14. Absent this relief, the Court will waste judicial resources in determining
and hearing further argument on the extensive cross-motions for summary judgment
filed by the parties in November 2014. Here, evidence withheld by Defendants
during discovery and during the extensive briefing of the cross-motions and newly
discovered evidence by Plaintiffs directly related to Defendants’ supplemental
production readily resolves the key issues in Plaintiffs’ favor and should be
considered in the interest of justice.
15. Plaintiffs are not at fault in the need for this ex parte relief, any
prejudice to Defendants was created by their own conduct in “mistakenly”
withholding evidence and good cause exists for the review of this newly discovered
///
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EXHIBITS
16. Attached hereto are true and correct copies of the following documents:
Exhibit A: Relevant pages from Defendants’ Supplemental Production, first
accessed by Plaintiffs on July 13, 2015, including pages from 1927 version of
“The EVERDAY Song Book ” showing the Good Morning and Birthday Song
(WC2397-2400);
Exhibit B: July 23, 2015 e-mail from Linda Tashbook (University of
Pittsburgh) to Mark Rifkin attaching scanned pages from the 1927 version of “ The
EVERYDAY Song Book ” showing the Good Morning and Birthday Song;
Exhibit C: Copies of the relevant pages from 1922 version of “The
EVERYDAY Song Book ” which pages showing the Good Morning and Birthday
Song;
Exhibit D: Copyright Reg. No. A453345, for the first edition of The
EVERYDAY Song Book , filed on Aug. 5, 1916 (which did not include the Good
Morning and Birthday Song);
Exhibit E: Copyright Reg. No. A624750 for revised edition of The
EVERYDAY Song Book , filed on Oct. 6, 1921 (which included the Good Morning
and Birthday Song); and
Exhibit F: July 24, 2015 Electronic Mail exchange between Plaintiffs’
counsel (Betsy Manifold and Mark Rifkin) and Defendants’ Counsel (Kelly Klaus
and Adam Kaplan).
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 27th day of July 2015, in the City of San Diego, State of California.
By: /s/ Betsy C. Manifold
BETSY C. MANIFOLD
WARNER/CHAPPELL:21973.decl.bcm
EXHIBIT A
EXHIBIT A
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EXHIBIT A
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CONFIDENTIAL WC0002397
EXHIBIT A
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CONFIDENTIAL WC0002398
EXHIBIT A
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Case 2:13-cv-04460-GHK-MRW Document 225-1 Filed 07/27/15 Page 4 of 5 Page ID #:7130
CONFIDENTIAL WC0002399
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Case 2:13-cv-04460-GHK-MRW Document 225-1 Filed 07/27/15 Page 5 of 5 Page ID #:7131
CONFIDENTIAL WC0002400
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To: Rifkin, Mark
Subject: RE: Everyday Songbook
Here you go. It has the "good morning" lyrics and the "happy birthday" lyrics. Surely the copyright hasn't lasted this
long.
To: Tashbook, Linda <[email protected]>
Subject: RE: Everyday Songbook
The race is on! Thanks so much for all your help.
Original Message
To: Rifkin, Mark
Subject: Re: Everyday Songbook
The 1927 edition is in a storage facility off campus. I can ask them to send it to me and I can scan the pages, but it'll take
a day or two for the book to get here. You might have the copy you ordered by then. We can race. I'll send you the
scans a.s.a.p.
To: Tashbook, Linda
Subject: RE: Everyday Songbook
Linda, this was very helpful, but unfortunately the first edition of the book does not include the work we were looking
for (but we needed to confirm whether it did). Would you mind asking the Associate Director of the Center for
EXHIBIT B
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2
American Music to copy the page including Song # 16, which is entitled "Good Morning and Birthday Song," from the
1927 edition of the same book? The call number for the later edition is Nietz 5016799.
Again, many thanks.
To: Rifkin, Mark
Hi Mark,
As you can see, the Associate Director of the Center for American Music conducted this research herself. I hope this
result is helpful to your case.
Linda
Foreign International Comparative Law Librarian Barco Law Library University of Pittsburgh School of Law
3900 Forbes Avenue Pittsburgh, Pennsylvania 15260
Phone (412) 6481303 Fax (412) 6481352
View my research on my SSRN Author page:
http://ssrn.com/author=549071
Original Message
To: Tashbook, Linda
Subject: Everyday Songbook
Linda,
Attached are scans of the cover, index and title page of M1994 E947 1916, The Everyday Song Book. Unfortunately, I've
been unable to locate "Happy Birthday" or "Good Morning to You" in this score.
Best,
http://www.pitt.edu/~amerimus/foster.htm
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a
&
EXHIBIT D
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York.
Dec.
30,
1916
Everyday songbook
Dec.
28,
E.
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EXHIBIT E
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U.
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EXHIBIT F
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From: Manifold, Betsy Sent: Friday, July 24, 2015 7:00 PM To: 'Klaus, Kelly'; Kaplan, Adam Cc: Rifkin, Mark Subject: RE: Warner Chappell: Plaintiffs' Ex Parte Application based on 1922 and 1927 Everyday Song Book
Kelly –
Received your email and will inform the Court of your position. As agreed (and noted below), Plaintiffs will not file
WC23972400 under seal. I will send you a copy of the papers via email before we file with the Court. We plan to file
Monday morning as early as practicable.
Plaintiffs do not agree that that the certified copies of the deposit copy and copyright receipt that Warner Chappell
recently obtained from the British Library should be submitted to the Court in advance of the hearing on
Wednesday. Pursuant to L.R. 79, Plaintiffs will oppose Warner Chappell’s motion (Dkt. 223) to supplement the record
with those materials.
Betsy
From: Klaus, Kelly [mailto:[email protected]] Sent: Friday, July 24, 2015 6:47 PM To: Manifold, Betsy; Kaplan, Adam Cc: Rifkin, Mark Subject: RE: Warner Chappell: Plaintiffs' Ex Parte Application based on 1922 and 1927 Everyday Song Book
Hi Betsy –
Thanks for your email, and for forwarding the documents.
Warner Chappell does not object to Plaintiffs’ submission of the documents that you forwarded. (Warner Chappell also
does not object to your filing WC 23972400 not under seal.) Warner Chappell does not agree that these documents
warrant the grant of summary judgment in Plaintiffs’ favor. When we spoke this afternoon, I asked you on what basis a
publication of the lyrics to Happy Birthday to You by a third party, even if in fact done with the “special permission” of
Summy (a point that we do not concede), would divest the common law copyright in those lyrics held by its authors,
Mildred and Patty Hill, given that nothing in the Everyday Song Book (or anything else of which we are aware) provides
any evidence of the Hills’ authorization. You told me that you were not prepared to discuss your legal arguments in that
regard, but rather only wanted to know Warner Chappell’s position regarding Plaintiffs’ request to submit the pages
from the Everyday Song Book. Whatever your argument is in regard to Plaintiffs’ motion for summary judgment,
Warner Chappell would like the opportunity to review it and to respond in writing prior to arguing the matter before the
Court.
In addition, Warner Chappell requests that Plaintiffs agree that the certified copies of the deposit copy and copyright
receipt that Warner Chappell recently obtained from the British Library also be submitted to the Court in advance of the
hearing on Wednesday. Warner Chappell filed a motion to supplement the record with those materials yesterday (Dkt.
No. 223), but unlike your application, that motion was noticed for hearing in the ordinary course. If Plaintiffs are going
to be making new, nonabandonment arguments to the Court on Wednesday, we think that the deposit copy also
should be before the Court, since it is highly relevant to the issues relating to summary judgment and supportive of
Warner Chappell’s motion. In particular, the certified copy of the sheet music for Happy Birthday to You! from the
British Library is compelling corroborative proof that Summy deposited the same sheet music (with the same “familiar
lyrics” to Happy Birthday to You!) with the U.S. Copyright Office on the same date, December 6, 1935. Please let us
know if Plaintiffs are agreeable to this request.
Please inform the Court of our position in response to your request; please attach a copy of this email to your
submission; and please provide us with your submission as soon as it is ready, so that we can consider our response to
your legal arguments.
Thanks, and regards,
Kelly
From: Manifold, Betsy [mailto:[email protected]] Sent: Friday, July 24, 2015 2:02 PM To: Klaus, Kelly; Kaplan, Adam Cc: Rifkin, Mark Subject: Warner Chappell: Plaintiffs' Ex Parte Application based on 1922 and 1927 Everyday Song Book
Counsel: As discussed, attached are the relevant pages from both the 1922 and 1927 Everyday Song Book. The clear
1927 version was located in the University of Pittsburgh music library and provided by one of their research librarians
yesterday. The language blurred in the 1927 copy provided by Defendants (even in today’s rescanned version) shows
Happy Birthday was published therein with “Special permission through courtesy of The Clayton F. Summy Co.” This
lead us to locate an earlier 1922 version of the Everyday Song Book which contains the same language.
We would like to submit this new evidence to the Court via ex parte application (today or Monday) and argue that it
warrants the grant of Summary Judgment in Plaintiffs’ favor. Please advise whether you oppose the submission of this
new evidence to the Court and will oppose Plaintiffs’ argument re: summary judgment so I can put Defendants’ position
in our ex parte application.
Thanks,
Betsy
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