!aaassseee      222:::111333-­-­-cccvvv-­-­-000444444666000-­-­-GGGHHHKKK-­-­-MMMRRRWWW                  DDDooocccuuummmeeennnttt      222222444                  FFFiiillleeeddd      000777///222777///111555                  PPPaaagggeee      111      ooofff      111333                  PPPaaagggeee      IIIDDD      ###:::777111000222 8 FRANCIS M. GREGOREK (144785) gregorek@whafh.com BETSY C. MANIFOLD (182450) manifold@whafh.com RACHELE R. RICKERT (190634) rickert@whafh.com MARISA C. LIVESAY (223247) livesay@whafh.com WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 9 Attorneys for Plaintiffs 1 2 3 4 5 6 7 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA 12 WESTERN DIVISION 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) ) Plaintiffs, ) ) v. ) WARNER/CHAPPELL MUSIC, ) ) INC., et al., ) ) Defendants. ) ) ) ) ) ) ) ) ) ) GOOD MORNING TO YOU PRODUCTIONS CORP., et al., Case No. CV 13-04460-GHK (MRWx) 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: Courtroom: Fact Discovery Cutoff: MSJ Hearings Pretrial Conference: Trial: Hon. George H. King, Chief Judge 650 July 11, 2014 March 23, 2015 and July 29, 2015 N/A N/A !aaassseee      222:::111333-­-­-cccvvv-­-­-000444444666000-­-­-GGGHHHKKK-­-­-MMMRRRWWW                  DDDooocccuuummmeeennnttt      222222444                  FFFiiillleeeddd      000777///222777///111555                  PPPaaagggeee      222      ooofff      111333                  PPPaaagggeee      IIIDDD      ###:::777111000333 1 I. INTRODUCTION 2 Plaintiffs make this ex parte application to have the Court (i) enter an Order 3 permitting Plaintiffs to supplement the record with the newly-discovered evidence 4 that Defendants “mistakenly” withheld during discovery; (ii) consider the newly- 5 discovered evidence in ruling on the pending Joint Cross-Motions for Summary 6 Judgment (“Summary Judgment Motions”) (Dkt. 179, 181, 182); and (iii) enter 7 summary judgment in Plaintiffs’ favor on the basis of the newly-discovered evidence 8 that proves conclusively that Happy Birthday has been in the public domain since no 9 later than 1922. 10 On July 13, 2015, Defendants gave Plaintiffs access to a database of 11 approximately 500 pages of documents, including approximately 200 pages of 12 documents they claim were “mistakenly” not produced during discovery, which 13 ended on July 11, 2014, more than one year earlier. 1 See Declaration of Betsy C. 14 Manifold in Support of Ex Parte Application (“Manifold Decl.”), ¶¶ 5,8, 9. One of 15 those documents – a 1927 publication of the Happy Birthday song that was expressly 16 authorized by defendants’ predecessor the Clayton F. Summy Co. – is a proverbial 17 smoking-gun. Id., Exhibits (“Ex.”) A and B. It and earlier versions of the song that 18 Plaintiffs subsequently located through their own investigative efforts conclusively 19 prove that any copyright that may have existed for the song itself (i.e., the setting of 20 the Happy Birthday lyrics to the melody of Good Morning) expired decades ago. 21 This newly-discovered evidence is fully consistent with Plaintiffs’ arguments 22 that (i) Patty Hill gave the lyrics to the public when she wrote them as a version of 23 the song she wrote with her sister Mildred Hill and (ii) that the 1935 copyrights 24 25 26 27 28 1 The initially set fact discovery deadline of June 27, 2014 (Dkt. 92) was extended by Magistrate Judge Wilner, in consultation with this Court, and at the request of both parties, to July 11, 2014. (Dkt. 119). -1- !aaassseee      222:::111333-­-­-cccvvv-­-­-000444444666000-­-­-GGGHHHKKK-­-­-MMMRRRWWW                  DDDooocccuuummmeeennnttt      222222444                  FFFiiillleeeddd      000777///222777///111555                  PPPaaagggeee      333      ooofff      111333                  PPPaaagggeee      IIIDDD      ###:::777111000444 1 covered only specific piano arrangements of the song. More importantly, it trumps 2 all of Defendants’ arguments. 3 Plaintiffs are mindful of the Court’s order directing the parties not to 4 supplement the summary judgment record when they submitted their supplemental 5 joint brief on whether Patty Hill abandoned any copyright to the Happy Birthday 6 lyrics. Dkt. 215 at 1. However, because the documents prove conclusively that the 7 song is in the public domain, thus making it unnecessary for the Court to decide the 8 scope or validity of the disputed copyrights, much less whether Patty Hill abandoned 9 any copyright she may have had to the lyrics – indeed, all those issues become moot 10 – Plaintiffs are compelled to bring them to the Court’s attention now, before more 11 time is needlessly spent on the pending Summary Judgment Motions and before the 12 oral argument scheduled for July 29, 2015 (Dkt.222).2 13 Pursuant to L.R. 7-19.1, Plaintiffs orally notified Defendants’ counsel on July 14 24, 2015 at 1:20 p.m. about this ex parte application. Details are provided both 15 below and in the Manifold Declaration. 16 Absent this relief, the Court will waste judicial resources in determining and 17 hearing further argument on the extensive Joint Cross Motions for Summary 18 Judgment filed by the parties in November 2014 because the evidence withheld by 19 Defendants during discovery and Plaintiffs’ investigation prompted by the withheld 20 evidence readily resolves the key issues in Plaintiffs’ favor. Plaintiffs are not at fault 21 in the need for this ex parte relief, any prejudice to Defendants was created by their 22 own conduct in “mistakenly” withholding evidence and good cause exists for the 23 review of this newly discovered evidence by the Court and the grant of Summary 24 25 26 27 28 2 Because the publication is definitive proof that there is no longer any copyright for Happy Birthday, we are not asking the Court to permit us to submit any of these additional documents described in the Manifold Declaration (¶ 10) at this time. However, Plaintiffs expressly reserve their right to do so at a later time as may be necessary or appropriate. -2- !aaassseee      222:::111333-­-­-cccvvv-­-­-000444444666000-­-­-GGGHHHKKK-­-­-MMMRRRWWW                  DDDooocccuuummmeeennnttt      222222444                  FFFiiillleeeddd      000777///222777///111555                  PPPaaagggeee      444      ooofff      111333                  PPPaaagggeee      IIIDDD      ###:::777111000555 1 Judgment in Plaintiffs’ favor. 2 II. 3 CONTACT INFORMATION FOR OPPOSING COUNSEL Pursuant to Local Rule 7-19, Plaintiffs provide the following contact 4 information for opposing counsel: 5 Kelly M. Klaus Glen Pomerantz Adam I. Kaplan Melinda E. LeMoine MUNGER TOLLES & OLSON LLP MUNGER TOLLES & OLSON LLP 560 Mission St., 27th Floor 355 South Grand Ave., 35th Floor San Francisco, CA 94105 Los Angeles, CA 90071 Telephone: 415/512-4000 Telephone: 213/683-9100 kelly.klaus@mto.com glenn.pomerantz@mto.com adam.kaplan@mto.com melinda.lemoine@mto.com 6 7 8 9 10 11 12 13 14 Pursuant to Local Rule 7-19.1, on July 24, 2015, at 1:20 p.m., Plaintiffs 15 informed counsel for Defendants (Adam Kaplan and Kelly Klaus) that they intended 16 to file this application on July 27, 2015. Defendants advised Plaintiffs that they did 17 not oppose the submission of this newly discovered evidence to the Court but will 18 provide a written response opposing the grant of summary judgment in Plaintiffs’ 19 favor. Manifold Decl., ¶ 3. On July 27, 2015, Plaintiffs electronically served a copy 20 of this ex parte application and supporting papers on Defendants’ counsel prior to 21 filing. Id., ¶ 4. No hearing date is requested, but, if the Court determines that a 22 hearing would be helpful, Plaintiffs could appear at any time convenient for the 23 Court and will be prepared to address this application at July 29, 2015 oral argument. 24 III. FACTUAL BACKGROUND 25 In 1927, The Cable Co. (“Cable”), a Chicago music publisher, published the 26 15th edition of a compilation of children’s songs called The Everyday Song Book 27 (Graded). On July 13, 2015, Defendants provided Plaintiffs with access to an FTP 28 site that included (among several other documents) a PDF copy of the 15th edition of -3- !aaassseee      222:::111333-­-­-cccvvv-­-­-000444444666000-­-­-GGGHHHKKK-­-­-MMMRRRWWW                  DDDooocccuuummmeeennnttt      222222444                  FFFiiillleeeddd      000777///222777///111555                  PPPaaagggeee      555      ooofff      111333                  PPPaaagggeee      IIIDDD      ###:::777111000666 1 The Everyday Song Book. See Manifold Decl., ¶ 9. The 16th song in that edition of 2 The Everyday Song Book, appearing on the page marked WC0002424 by 3 Defendants, was entitled “Good Morning and Birthday Song.” Manifold Decl., Ex. 4 A. The Good Morning and Birthday Song consists of Mildred Hill’s melody for 5 Good Morning together with Patty Hill’s lyrics for both Good Morning and Happy 6 Birthday (if the Court finds that she wrote the Happy Birthday lyrics). 7 A line of text is printed directly below the song’s title in the song book. See 8 Manifold Decl., Ex. A. The line of text in the PDF copy provided by the Defendants 9 is blurred almost beyond legibility – curiously, it is the only line of the entire PDF 10 that is blurred in that manner. After Plaintiffs learned of the existence of The 11 Everyday Song Book, they promptly obtained original samples of the first, fourth, 12 and 15th editions of the book. See Manifold Decl., ¶¶ 11,12, Ex. B. The line of text 13 (illegibly blurred in the PDF copy provided by Defendants, but clearly printed in 14 Exhibit B) reads as follows: “Special permission through courtesy of The Clayton F. 15 Summy Co.” Unlike other individual works in the book, for which a copyright was 16 identified, no copyright was claimed or identified for the Good Morning and 17 Birthday Song. 18 The first edition of The Everyday Song Book, published in 1916, did not 19 include the Good Morning and Happy Birthday song. However, Plaintiffs obtained 20 samples of earlier editions of The Everyday Song Book. A revised fourth edition, 21 published in 1922, included the Good Morning and Birthday Song. See Manifold 22 Decl., Ex. C. The Good Morning and Birthday Song also appeared, with the same 23 legend but without a copyright notice, in the 15th editions of The Everyday Song 24 Book. 25 Publication of the Good Morning and Birthday Song in The Everyday Song 26 Book in 1922 and thereafter, with Summy’s authorization but without a copyright 27 notice, is fully consistent with Plaintiffs’ position that the Happy Birthday lyrics had 28 been dedicated to the public many years before then. Because the lyrics were in the -4- !aaassseee      222:::111333-­-­-cccvvv-­-­-000444444666000-­-­-GGGHHHKKK-­-­-MMMRRRWWW                  DDDooocccuuummmeeennnttt      222222444                  FFFiiillleeeddd      000777///222777///111555                  PPPaaagggeee      666      ooofff      111333                  PPPaaagggeee      IIIDDD      ###:::777111000777 1 public domain, there was no reason for a copyright notice to be set forth in the song 2 book. Moreover, the authorized publication of the Good Morning and Birthday Song 3 in 1922 without a copyright notice also is fully consistent with Plaintiffs’ position 4 that the 1935 copyrights (E51988 and E51990) covered only the specific piano 5 arrangements written by Summy’s employees Orem and Forman (as well as the 6 second verse written by Forman). Since the lyrics were already in the public domain 7 long before 1935, there was nothing else to be copyrighted other than the new work 8 that Summy’s employees contributed when those copyrights were registered.3 9 IV. LEGAL STANDARD 10 An application for ex parte relief is granted when (1) the moving party would 11 be “irreparably prejudiced if the underlying motion is heard according to regular 12 noticed motion procedures” and (2) the moving party is without fault in creating the 13 situation requiring ex parte relief. Mission Power Engineering Co. v. Continental 14 Casualty Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). 15 A pre-trial scheduling order may be modified “upon a showing of good cause.” 16 Fed. R. Civ. P. 16(b)(4); Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 17 1087 (9th Cir. 2002). Good cause is shown if the schedule “cannot reasonably be met 18 19 20 21 22 23 24 25 26 27 28 3 The Everyday Song Book also flatly contradicts two of defendants’ so-called “undisputed” facts in the Corrected Joint Statement of Uncontroverted Facts [Dkt. 183] filed on Dec. 1, 2014: x There is no evidence that Clayton F. Summy Co. ever authorized, prior to 1936, any “publication” (for purposes of the Copyright Act of 1909) of the lyrics of Happy Birthday to You by a different person or entity. D57. x There is no evidence that Clayton F. Summy Co. was ever aware, prior to 1936, of any “publication” (for purposes of the Copyright Act of 1909) of the lyrics of Happy Birthday to You by a different person or entity. D56. Summy expressly authorized the Happy Birthday lyrics to be published in the Good Morning and Birthday Song in the second edition of the Everyday Song Book. Since Summy expressly authorized publication of the Good Morning and Birthday Song in 1922, it was certainly aware of the publication prior to 1936. -5- !aaassseee      222:::111333-­-­-cccvvv-­-­-000444444666000-­-­-GGGHHHKKK-­-­-MMMRRRWWW                  DDDooocccuuummmeeennnttt      222222444                  FFFiiillleeeddd      000777///222777///111555                  PPPaaagggeee      777      ooofff      111333                  PPPaaagggeee      IIIDDD      ###:::777111000888 1 despite the diligence of the party seeking the extension.” Photomedex, Inc. v. Irwin, 2 No. 04-CV-0024, 2007 U.S. Dist. LEXIS 56774, at *4. 3 Plaintiffs meet the requirements for ex parte relief and for the underlying 4 request to have the Court consider newly discovered evidence “mistakenly” withheld 5 by Defendants during discovery and during the extensive briefing of cross-motions 6 for Summary Judgment and, therefore, respectfully request that the Court grant this 7 application and enter Summary Judgment in favor of Plaintiffs. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. The Court Should Exercise Its Discretion to Consider This Newly Discovered Evidence This Court has broad discretion to permit a litigant to supplement the factual record on the cross-motions for summary judgment. Bell v. City of Los Angeles, 835 F. Supp. 2d 836, 848 (C.D. Cal. 2011) (Matz, J.) (citing Betz v. Trainer Wortham & Co., 610 F.3d 1169, 1171 (9th Cir. 2010)); Fed. R. Civ. P. (“Rule”) 56(e). District courts in the Ninth Circuit routinely allow parties to supplement the summary judgment record with newly-discovered evidence. See, e.g., George v. Northwestern Mut. Life Ins. Co., 2011 U.S. Dist. LEXIS 99454, *9-10 (W.D. Wash. Sept. 1, 2011); LimoStars, Inc. v. N.J. Car & Limo, Inc., 2011 U.S. Dist. LEXIS 87771, *11 (D. Ariz. Aug. 8, 2011) (citing United States v. Maris, 2011 U.S. Dist. LEXIS 15088, * 5 n. 5 (D.Nev. Feb. 4, 2011); Mitchel v. Holder, 2010 U.S. Dist. LEXIS 21088, * 1 n.1 (N.D. Cal., Mar. 9, 2010). As the Supreme Court explained in Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1), permitting an amendment to consider newly-discovered evidence is “an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’” The Court previously directed the parties not to supplement the summary judgment record when they submitted the supplemental joint brief on whether Patty Hill abandoned any copyright to the Happy Birthday lyrics. Dkt. 215 at 1. However, Plaintiffs prepared their motion for summary judgment, their portion of the Corrected Joint Statement of Uncontroverted Facts, and their portion of the Joint Appendix -6- !aaassseee      222:::111333-­-­-cccvvv-­-­-000444444666000-­-­-GGGHHHKKK-­-­-MMMRRRWWW                  DDDooocccuuummmeeennnttt      222222444                  FFFiiillleeeddd      000777///222777///111555                  PPPaaagggeee      888      ooofff      111333                  PPPaaagggeee      IIIDDD      ###:::777111000999 1 before they learned of the publication of The Everyday Song Book, which Defendants 2 “mistakenly” withheld from production during discovery.4 This was through 3 absolutely no fault of Plaintiffs, who acted diligently immediately after obtaining 4 access to the 1927 edition of that compilation. 5 Now that this evidence has been uncovered, fairness, economy, and due 6 process compel the Court to exercise its discretion to allow Plaintiffs to supplement 7 the record, to consider the newly-discovered evidence – which proves conclusively 8 that there is no copyright to the Happy Birthday lyrics – and to decide the cross- 9 motions for summary judgment in Plaintiffs’ favor based upon this newly-discovered 10 evidence. 11 B. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Newly-Discovered Evidence Proves Conclusively That the Happy Birthday Lyrics Entered the Public Domain No Later Than 1922 Under Section 9 of the 1909 Copyright Act, “any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act” affixed to all copies of the work. 17 U.S.C. § 9.5 At a minimum, Section 18 of the 1909 Copyright Act required the notice to include the 4 Defendants have provided no details of the nature of their so-called “mistake” in not producing any of these documents before discovery ended on July 11, 2014, such as when they were first discovered, where they were stored, how they were located, who located them, and the nature of defendants’ “mistake” in not timely producing the documents. Timely production of documents, and in particular the 1927 publication of the Good Morning and Birthday Song, would have affected Plaintiffs’ conduct of discovery, their briefing on the cross-motions for summary judgment, and (no doubt) the Court’s consideration of the summary judgment crossmotions. Plaintiffs reserve all of their rights regarding Defendants’ untimely production of the documents. 5 At the initial hearing on the cross-motions for summary judgment, defendants’ counsel admitted that a copyright was not obtained unless the work was published with the requisite notice: “What was necessary was publication with notice.” Dkt. 208 at 7:24. -7- !aaassseee      222:::111333-­-­-cccvvv-­-­-000444444666000-­-­-GGGHHHKKK-­-­-MMMRRRWWW                  DDDooocccuuummmeeennnttt      222222444                  FFFiiillleeeddd      000777///222777///111555                  PPPaaagggeee      999      ooofff      111333                  PPPaaagggeee      IIIDDD      ###:::777111111000 1 word “Copyright,” the abbreviation “Copr., ” or the “©” symbol as well as the year 2 of first publication and the name of the author of the copyrighted work. 17 U.S.C. § 3 18. If the strict notice requirements of the 1909 Copyright Act were not met, the 4 “published work was interjected irrevocably into the public domain.” Twin Books 5 Corp. v. Walt Disney Co., 83 F.3d 1162, 1165 (9th Cir. 1996) (emphasis added). 6 None of these notice requirements was met for the Good Morning and Birthday Song 7 included in the fourth edition of The Everyday Song Book published in 1922.6 8 Forfeiture occurs for individual works included with the author’s permission in 9 a compilation published by another person. With few exceptions, none of which 10 apply here, when an individual work is included in a compilation and the copyright 11 notice includes only the compilation publisher’s name, the author of the individual 12 work loses his copyright and the author’s work falls into the public domain. See New 13 York Times Co. v. Tasini, 533 U.S. 483, 494-95 (2001). Copyright in the individual 14 work is forfeited and the work falls into the public domain when, as here, it is 15 published as part of a collective work with permission of the author but without a 16 copyright notice in the name of its author. Milton H. Green Archives, Inc., v. BPI 17 Communs., Inc., 378 F. Supp. 2d 1189, 1195-97 (C.D. Cal. 2005) (copyright notice 18 must be issued “in the name of the copyright holder, not merely in the name of the 19 publishing newspaper, magazine or campaign book) (citing Tasini, 533 U.S. at 494 20 (2001). 21 22 23 24 25 26 27 28 6 Because Cable attributed Good Morning and Birthday Song to Summy Co., Cable’s copyright in the compilation did not cover that individual work. Under Section 24 of the 1909 Copyright Act, the proprietor of a compilation owns copyrights “in the collective itself (i.e., the collection, arrangement, and display of the constituent parts) and any individual contributions that it initially held copyright ownership in,” but not in the work of others included with their permission. Faulkner v. Nat’l Geographic Soc’y, 220 F. Supp. 237, 239 (S.D.N.Y. 2002) (citing SelfRealization Fellowship Church v. Ananda Church of Self-Realization, 206 F.3d 1322, 1329-30 (9th Cir. 2000), cert. denied, 531 U.S. 1126 (2001) (compilation copyright does not include copyright in work of others included in compilation)). -8- !aaassseee      222:::111333-­-­-cccvvv-­-­-000444444666000-­-­-GGGHHHKKK-­-­-MMMRRRWWW                  DDDooocccuuummmeeennnttt      222222444                  FFFiiillleeeddd      000777///222777///111555                  PPPaaagggeee      111000      ooofff      111333                  PPPaaagggeee      IIIDDD      ###:::777111111111 1 Thus, Cable’s failure to include a mandatory copyright notice, as required by 2 the 1909 Copyright Act, meant that the Happy Birthday lyrics would have been 3 “interjected irrevocably into the public domain” upon the publication in 1922, had 4 they not already been given to the public by Patty Hill many years before. 5 After learning of the Everyday Song Book, Plaintiffs also promptly 6 investigated the copyrights for the various editions of the work. We have discovered 7 the following copyrights, and no others, for The Everyday Song Book: x Reg. No. A453345, for the first edition, filed on Aug. 5, 1916 (which 8 did not include the Good Morning and Birthday Song); and 9 x Reg. No. A624750 for a revised edition, filed on Oct. 6, 1921 (which 10 included the Good Morning and Birthday Song).7 11 12 Neither of those two copyrights was ever renewed – not by Cable or by 13 Summy. Thus, for A453345, the copyright expired 28 years later on Aug. 5, 1944, 14 and for A624750, the copyright expired on Oct. 6, 1949. Whatever work those two 15 copyrights may have protected, it is now unquestionably in the public domain. 16 Therefore, even if the Court overlooks the absence of a copyright notice in the 1922 17 publication of the fourth edition of The Everyday Song Book and does not determine 18 that the Happy Birthday lyrics passed into the public domain when published in 1922 19 (if Patty Hill had not already given them to the public), then the copyright expired no 20 later than 1950 when it was not renewed. Of course, even if federal copyright for the 21 Happy Birthday melody and lyrics were properly gained by publication with notice 22 in 1922 (which it was not), and that copyright had been properly renewed in 1949 23 (which it was not), the song would have fallen into the public domain at midnight on 24 December 31, 1997. See 17 U.S.C. § 304, n.7 (explaining that, before the enactment 25 26 27 28 7 See Manifold Decl., Exs. D and E. Plaintiffs believe the revised edition for which this copyright was obtained was not published until 1922 (i.e., as the fourth edition of The Everyday Song Book), which therefore bears the copyright date of 1922. -9- !aaassseee      222:::111333-­-­-cccvvv-­-­-000444444666000-­-­-GGGHHHKKK-­-­-MMMRRRWWW                  DDDooocccuuummmeeennnttt      222222444                  FFFiiillleeeddd      000777///222777///111555                  PPPaaagggeee      111111      ooofff      111333                  PPPaaagggeee      IIIDDD      ###:::777111111222 1 of the Sonny Bono Copyright Term Extension Act on October 27, 1998, § 304(b) of 2 the Copyright Act granted a term of copyright of 75 years – which § 305 extended to 3 the end of the calendar year – for all works still in their renewal period as of 4 December 31, 1976). Thus, given the authorized publication of Happy Birthday in 5 1922 without a copyright notice, there is no conceivable set of facts under which the 6 song would be under copyright after December 31, 1997. 7 Because the untimely, thirteenth-hour discovery from defendants conclusively 8 resolves this part of the copyright dispute and renders consideration of all other 9 issues presently before the Court moot, we respectfully request that the Court 10 consider The Everyday Song Book as definitive proof that the copyright for Happy 11 Birthday was forfeited in 1922 or, in the alternative, that any copyright for Happy 12 Birthday expired in 1949. 13 V. CONCLUSION 14 For the reasons stated above, Plaintiffs respectfully submit that this Ex Parte 15 Application should be granted. The Court should (i) enter an Order permitting 16 Plaintiffs to supplement the record with the newly-discovered evidence that 17 Defendants “mistakenly” withheld during discovery; (ii) consider the newly- 18 discovered evidence in ruling on the pending cross-motions for summary judgment; 19 and (iii) enter summary judgment in Plaintiffs’ favor on the basis of the newly- 20 discovered evidence that proves conclusively that Happy Birthday has been in the 21 public domain since no later than 1922. 22 Dated: July 27, 2015 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 23 24 25 26 27 28 By: /s/ Betsy C. Manifold BETSY C. MANIFOLD FRANCIS M. GREGOREK gregorek@whafh.com BETSY C. MANIFOLD manifold@whafh.com - 10 - !aaassseee      222:::111333-­-­-cccvvv-­-­-000444444666000-­-­-GGGHHHKKK-­-­-MMMRRRWWW                  DDDooocccuuummmeeennnttt      222222444                  FFFiiillleeeddd      000777///222777///111555                  PPPaaagggeee      111222      ooofff      111333                  PPPaaagggeee      IIIDDD      ###:::777111111333 1 2 3 4 5 6 7 8 9 10 11 12 13 14 RACHELE R. RICKERT rickert@whafh.com MARISA C. LIVESAY livesay@whafh.com 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP MARK C. RIFKIN (pro hac vice) rifkin@whafh.com JANINE POLLACK (pro hac vice) pollack@whafh.com 270 Madison Avenue New York, NY 10016 Telephone: 212/545-4600 Facsimile: 212-545-4753 15 Interim Lead Counsel for Plaintiffs 16 RANDALL S. NEWMAN PC RANDALL S. NEWMAN (190547) rsn@randallnewman.net 37 Wall Street, Penthouse D New York, NY 10005 Telephone: 212/797-3737 17 18 19 20 21 22 23 24 25 26 27 28 HUNT ORTMANN PALFFY NIEVES DARLING & MAH, INC. ALISON C. GIBBS (257526) gibbs@huntortmann.com OMEL A. NIEVES (134444) nieves@huntortmann.com KATHLYNN E. SMITH (234541) smith@ huntortmann.com 301 North Lake Avenue, 7th Floor Pasadena, CA 91101 Telephone 626/440-5200 Facsimile 626/796-0107 - 11 - !aaassseee      222:::111333-­-­-cccvvv-­-­-000444444666000-­-­-GGGHHHKKK-­-­-MMMRRRWWW                  DDDooocccuuummmeeennnttt      222222444                  FFFiiillleeeddd      000777///222777///111555                  PPPaaagggeee      111333      ooofff      111333                  PPPaaagggeee      IIIDDD      ###:::777111111444 DONAHUE FITZGERALD LLP WILLIAM R. HILL (114954) rock@donahue.com ANDREW S. MACKAY (197074) andrew@donahue.com DANIEL J. SCHACHT (259717) daniel@donahue.com 1999 Harrison Street, 25th Floor Oakland, CA 94612-3520 Telephone: 510/451-0544 Facsimile: 510/832-1486 1 2 3 4 5 6 7 8 9 GLANCY BINKOW & GOLDBERG LLP LIONEL Z. GLANCY (134180) lglancy@glancylaw.com MARC L. GODINO (188669) mgodino@glancylaw.com 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: 310/201-9150 Facsimile: 310/201-9160 10 11 12 13 14 15 16 Attorneys for Plaintiffs 17 18 19 20 21 22 23 24 25 26 27 28 WARNER/CHAPPELL:21970.exparte - 12 -