Free Pretrial Order - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, doing business as COOGAN PHOTOGRAPHIC, Plaintiff, v. AVNET, INC., et al., Defendants. Pursuant to the Scheduling Order previously entered, and the Court's June 29, 2006 Minute Entry, the following is the parties' final Joint Proposed Pretrial Order. A. TRIAL COUNSEL FOR THE PARTIES (Include numbers). Plaintiff(s): Jordan M. Meschkow (AZ Bar No. 007454) MESCHKOW & GRESHAM, P.L.C., 5727 North Seventh Street, Suite 409, Phoenix, Arizona 85014-5818, (602) 274-6996, (602) 2746970 (facsimile) Nancy R. Giles (AZ Bar No. 020163), GILES LEGAL, P.L.C., 733 West Willetta Street, Phoenix, Arizona 85007, (602) 252-1788 (telephone and facsimile) For Plaintiff Dan Coogan, doing business as Coogan Photographic Defendant(s): Jordan Green (AZ Bar No. 001860), Lawrence Palles (AZ Case 2:04-cv-00621-SRB Document 264 Filed 07/19/2006 Page 1 of 71 mailing address, office phone and fax Case No.: CV-04-0621 PHX SRB JOINT PROPOSED PRETRIAL ORDER

Bar No. 020263), FENNEMORE CRAIG, 3003 North Central Avenue, Suite 2600, Phoenix, Arizona 85012-2913 (602) 916-5000, (602) 916-5999(facsimile) For Defendants Avnet, Inc., Roy Vallee, and Jane Doe Vallee, husband and wife, and Al Maag, and Jane Doe Maag, husband and wife B. STATEMENT OF JURISDICTION/VENUE. Cite the statute(s) or

rule(s) which give(s) this Court jurisdiction and venue. Jurisdiction is proper in this matter pursuant to 17 U.S.C. § 101 et seq., 28 U.S.C. § 1338, and the laws of the State of Arizona. Venue is vested in this Court pursuant to 28 U.S.C. § 1400 (a). C. NATURE OF ACTION. Provide a concise statement of the type of

case, the cause of the action, and the relief sought. This action is a multiple count copyright infringement/breach of contract case. On summary judgment, Defendant Avnet, Inc., was held liable on the copyright counts for having willfully infringed Plaintiffs' copyrights, and liable for breaching the contract at issue in this case. The plaintiff can make an election between actual damages and statutory damages (under 17 U.S.C. § 504(c)) at any time before final judgment. For the copyright infringements, Plaintiff seeks either actual damages in an amount to be determined with or without indirect profits in an amount or amounts to be determined under 17 U.S.C. § 504(b), or maximum statutory damages under 17 U.S.C. § 504(c). Plaintiff also seeks damages for breach of contract under Arizona law, and his costs and attorney's fees under 17 U.S.C. § 505 and A.R.S. § 12-341 and 12-341.01. Finally, the plaintiff also seeks a finding of liability on the part of the individual defendants, thus making them jointly and severally liable for any and all damages. D. JURY/NON-JURY. State whether any party has demanded a jury

trial of all or any of the issues and, if so, whether each adversary accepts or contests the demand for jury trial. Neither party has demanded a jury trial of all or any of the issues.

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E.

CONTENTIONS OF THE PARTIES With respect to each count of the complaint, counterclaim or

cross-claim, and to any defense, affirmative defense, or the rebuttal of a presumption where the burden of proof has shifted, the party having the burden of proof shall list the elements or standards that must be proved in order for the party to prevail on each claim or defense and set forth the relief (e.g. monetary damages), if any, claimed by each party. Citation to relevant and/or controlling legal authority is required. Plaintiff Contends: The Defendants jointly have been held liable to Counts I, IV, and V of the amended complaint. The only remaining issues in this case for trial are the following: the type and amount

of damages, and the liability of the individual defendants. Damages Election an infringer of copyright is liable for either (1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or (2) statutory damages, as provided by subsection (c). 17 U.S.C. § 504(a). in this case, "for In the case of willful infringement, as which any one infringer is liable

individually, or for which any two or more infringers are liable jointly and severally", "the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000." 17 U.S.C. § 504(c)(1) and (2). "The

copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and

profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for

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which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of ... as the court considers just." 17 U.S.C. § 504 (c)(1) (emphasis added). Plaintiff intends to make such an

election before final judgment is rendered. With respect to statutory damages under 17 U.S.C. § 504(c)(2), Plaintiff contends that Defendants should be

liable for the maximum statutory award of $150,000 because "the court must consider the amount of money at stake in relation Twentieth to the seriousness Fox Film of Defendant's v. Streeter, conduct." 2006 U.S.

Century

Corp.

Dist. LEXIS 12358 (D. Ariz. 2006) (citing Pepsico, Inc., et al. v. California Security Cans, et al., 238 F.Supp.2d 1172, 1176 (C.D. Cal. 2002). "`Factors the Court can consider in 504(c)] a in the The

determining the amount of a damages award [under § are: the expense saved by the defendant reaped by in

avoiding

licensing connection plaintiff;

agreement; with and the the

profits

defendant lost to

infringement; willfulness of

revenues the

infringement...

Court can also consider the goal of discouraging wrongful conduct.' LEXIS Controversy 2003 WL Music v. Shiferaw, at * 2 2003 (N.D. U.S. Dist.

15224,

22048519

Cal.2003)

(citations omitted)." Sony Computer Entertainment America, Inc. v. Filipiak, 406 F. Supp. 2d 1068, 1074 (N.D. Cal. 2005). The "based court upon can also award and maximum statutory nature damages of by the the

the and

egregious the damage

willful to

infringement

caused

plaintiff

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infringement, Perfect 10, Inc. v. Talisman Commun's., Inc., 2000 U.S. Dist. LEXIS 4564 (C.D. Cal. 2000; see also Warner Bros. Entertainment Inc., et al., v. Caridi, et al., 346 F. Supp. 2d 1068 (C.D. Cal. 2004). Damages Calculations In order to portray an accurate amount of actual

damages under 17 U.S.C. § 504(b), Plaintiff contends that under 17 U.S.C. §504(b), Plaintiff's actual damages/profits are based on two related who statutes. violates First, any of 17 the U.S.C. §

501(a)

states

"Anyone

exclusive

rights of the copyright owner as provided by sections 106..., is an infringer of the copyright..., as the case may be." Second, 17 U.S.C. §106, delineates in six sub-sections (four applicable here and listed below), that each of Defendants' trespasses on Plaintiff's exclusive rights granted was a

distinct use of Plaintiff's photographs: (1) to reproduce the copyrighted work in copies ...; derivative works based upon the

(2) to prepare copyrighted work;

(3) to distribute copies... of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; ... (5) in the case of... pictorial... works..., to display the copyrighted work publicly 17 U.S.C. §106. Additionally, under 17 U.S.C. § 504(b), the "actual

damages and any additional profits of the infringer" are to be calculated as "the actual damages suffered by him or her as a result of the infringement, and any profits of the

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infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross

revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work." (emphasis

added); see also Iowa State University Research Foundation, Inc. v. ABC, Inc., 475 F. Supp. 78, 83 (S.D.N.Y. 1979), aff'd, 621 F.2d 57 (2d Cir. 1980) (holding that a willful infringement defendant "cannot expect to pay the same price in damages as it might have paid after freely negotiated bargaining, or there would be no reason scrupulously to obey the copyright law."); Keca Music, Inc. v. Johnson, No. 5-7874 (N.D. Tex. June 18, 1979) (awarding $21,000 in damages and fees, or three times the appropriate license fees). Plaintiff believes Defendants' statement herein that

"Damages in the range of hundreds of thousands or millions of dollars are the kind of claims rejected by courts. See,

e.g. On Davis v. The Gap, 246 F.3d 152 (2nd Cir. 2001); Baker v. Urban Outfitters, Inc., 254 F. Supp. 2d 346 (S.D.N.Y. 2003)[]" is a misleading citation of Davis and Baker. To

Plaintiff's knowledge, there is no legal authority stating that courts typically reject infringement damages in the

"hundreds of thousands or millions of dollars." Moreover, the Copyright Act sets as a minimum statutory damage award "a sum of not less than $200" for each innocent third-party infringer; thus Avnet is jointly and severally responsible

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for actual damages for over 100,000 individual infringments from third-party downloads by its acts, in an amount of at least $200 each. 17 U.S.C. §504(c)(2). Individual Liability "The test for finding a corporate officer jointly and severally liable is with whether his the corporation officer 'has for the copyright right and

infringement

ability to supervise the infringing activity and also has a direct financial interest in such activities.'" Chi-Boy

Music v. Towne Tavern, Inc., 779 F. Supp. 527, 530 (N.D. Ala. 1991) (quoting Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963)); Broad. Music, Inc. v. Blueberry Hill Family Rests., Inc., 899 F. Supp. 474, 481 (D. Nev. 1995) The Court has held that for the individual defendants to be held jointly and severally liable for the

infringement(s), the individual defendant must · Be responsible for keeping track of Avnet's right to use the to photographs stop the at issue and have the See

authority

infringing

activity.

Playboy Enters. v. Starware Publ'g Corp., 900 F. Supp. 438, 440-41 (S.D. Fla. 1995; and · Be an Avnet corporate officer and have a direct financial interest in such activities The Court has already found Defendant Allen Maag was responsible for keeping track of Avnet's right to use the photographs at issue, he had the authority to stop the

infringing activity, and was an Avnet corporate officer, a

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member of the Avnet Executive Committee, leaving the only remaining issue to be whether he has a direct financial interest in Avnet, which, Plaintiff contends, he does. Plaintiff also contends that Mr. Vallee is jointly and severally liable. This is because Avnet transferred the

image to the GCIT, and once Mr. Vallee was served with the instant suit, he became, as concurrent Avnet CEO and GCIT Board Member "the individual responsible for keeping track of" use of Plaintiff's photographs for Vallee's bio by the GCIT. As Avnet CEO and a Board Member of GCIT (as well as co-chair as of late 2005), and having attended GCIT meetings on September 15, 2004, October 25, 2004, January 26, 2005, and May 18, 2005, "he had the authority v. to stop the

infringing

activity."

Playboy

Enters.

Starware

Publ'g

Corp., 900 F. Supp. 438, 440-41 (S.D. Fla. 1995). He did not stop the infringing activity for at least 18 months after he received notice of suit for that very transfer and use. The amount of statutory damages Plaintiff contends

applies is $150,000 per each of the three Defendants, or $450,000. Alternatively, Plaintiff contends Defendants are jointly responsible breached for Coogan any contract damages. ""Client" company Because refers under to the the its

contract or

commissioning

party

named

above,

representatives, successors, assigns, agents and affiliates" (emphasis added); Plaintiff contends all active infringing Board Members breached the contract and are jointly and

severally liable for such contract damages.

Moreover, the

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Contract specifically identifies Maag as a party to it. Plaintiff contends that the photographs in question,

licensed to Avnet, were pre-existing and all licensed as stock photography: The record is also clear that the factors applicable to pricing licenses of stock photographs are different from the factors applicable to pricing commissioned works. The pricing of a stock photograph does not involve the[] same variables. The reproduction fee paid to the photographer for the use of a stock photograph is not based on a daily rate, and the ultimate license fee is not influenced by the same factors that influence a day rate. See Jim Pickerell & Cheryl Pickerell DiFrank, Negotiating Stock Prices (5th ed. 2001) at 200 ("the client is not hiring someone to go out and produce something that is only a dream in his or her mind, as is the case in assignment photography. With a stock image, the client knows, before negotiations begin, exactly what he or she is buying ... Whether the image was taken by an experienced professional or an amateur has no bearing on its value."). Rather, the pricing of stock photography is based upon the type of use, size of use and circulation. See id. at 210. The differences in pricing concepts for commissioned versus stock photographs simply represent the obvious differences in what is being purchased when one commissions a work versus what is being purchased when one licenses a stock photograph. This difference is explained as follows: Assignment photography is new photography, commissioned and paid for by a client. We photographers are selling our ability to create a photograph and also the rights for the client to reproduce that photograph for a very specific usage and time period. In stock photography we are selling (licensing) rights to reproduce an already existing photograph. Michael Heron & David MacTavish, Pricing Photography (rev. ed. 1997) at 7. In view of these crucial differences in both purpose and practice, [the expert's] experience with pricing specially commissioned photographic shoots fails to qualify her as an expert on the matter of valuing a stock photograph." Baker holds such testimony and evidence "... engaging in the sort of `apples and oranges' comparison that has been rejected in the past as irrelevant[.]" Id.; Johnson Elec. N. Am., Inc. v. Mabuchi Motor Am. Corp., 103 F. Supp. 2d 268, 281 (S.D.N.Y. 2000) (holding that the proposed expert's Case 2:04-cv-00621-SRB Document 264 Filed 07/19/2006 Page 9 of 71

unfounded and irrelevant calculations destroy the validity of his conclusions")

"alone

Baker v. Urban Outfitters, Inc., 254 F. Supp. 2d 346, 353-55 (S.D.N.Y. 2003). Plaintiff contends he may elect separate damages from the infringements in Count I and Count IV since both arose from a breach of contract, but infringement in Count IV relates solely to events that occurred before contract date, and the infringement in Count I relates to those events that were covered by the one-year license and were lost by the breach. He may therefore elect contract damages under Count

IV and copyright damages under the later in time Count I, vice versa, both, or neither. See Paramount Pictures

Corporation v. Metro Program Network, Inc., 962 F.2d. 775 (9th Cir. 1992.) Defendants Contend as Follows: 1. Actual Damages believe Plaintiff's actual damages are in the

Defendants

range of $10,000 to $20,000.

Damages in the range of hundreds of

thousands or millions of dollars are the kind of claims rejected by courts. See, e.g. On Davis v. The Gap, 246 F.3d 152 (2nd Cir.

2001); Baker, v. Urban Outfitters, Inc., 254 F. Supp. 2d 346 (S.D.N.Y. 2003). Research Plaintiff's reliance on Iowa State University Inc. v. ABC, Inc., 475 F. Supp. 78, 83

Foundation,

(S.D.N.Y. 1979), regarding the computation of actual damages is misplaced. In Iowa State the court held that the plaintiff

failed to make a sufficient showing of actual damages and awarded $5,000 statutory damages per each of three infringements. 475 F.

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Supp. at 83.

The court noted that according to the defendant's

own estimates, each infringement was worth a minimum of $3,500. Id. In dicta, the court then stated that the defendant could not

expect to pay the same price in damages as it might have paid in a freely negotiated bargain. Id. This statement is irrelevant

to the computation of actual damages in this case. 2. Avnet Profits can only recover Avnet's profits that have a

Plaintiff

causal nexus to the infringement.

Polar Bear Productions, Inc.

v. Timex Corp., 384 F.3d 700, 711 (9th Cir. 2004); Mackie v. Riser, 296 F.3d 909, 914 (9th Cir. 2002). non-speculative evidence of a causal Plaintiff must present nexus between the

infringement and Avnet's revenue.

Polar Bear, 384 F.3d at 711;

Mackie, 296 F.3d at 914-15; Frank Music, 772 F.2d at 513, 517; Rainey v. Wayne State Univ., 26 F. Supp. 2d 963, 970-71 Plaintiff has the initial burden to provide proof of Avnet's gross revenue related to the infringement. at 707, 711; Mackie, 296 F.3d at 914-15. Polar Bear, 384 F.3d If Plaintiff meets his

burden of demonstrating a relationship between the infringement and revenue, the burden shifts to Avnet to prove any costs that should be deducted to arrive at profits and that revenues were attributable to something other than the infringement. Id.

There is no evidence of a causal relationship between the infringing uses and Avnet's revenue. 3. Joint and Several Liability

Maag and Vallee can be jointly and severally liable for copyright infringement only if Plaintiff proves that they had: (1) the right and ability to supervise the infringing activity,

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and (2) a direct financial interest in the infringing activity. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1022 (9th Cir. 2001). a. Right and ability to supervise

The Court previously ruled that Mr. Maag possessed the right and power to supervise the infringing activity. 2005 Order. The Court has not ruled whether Mr. Vallee possessed the right and power to supervise the infringing activity. See See October 25,

Softel, Inc. v. Dragon Medical & Scientific Communications, Inc., 118 F.3d 955, 971-72 (2nd Cir. 1997) (evidence that defendant was president and shareholder of defendant corporation insufficient to show requisite control); Burdick v. Koerner, 988 F. Supp. 2d

1206, 1210 (E.D. Wi. 1998) (defendant's membership on corporate board of directors insufficient to demonstrate sufficient control or direct financial interest); Bartell v. Onbank, Onbank & Trust Co., 1996 WL 421189 (N.D.N.Y. 1996) (dismissing claims against individual corporate directors due to lack of evidence that directors had right to control infringement or direct financial interest in infringement). b. Direct financial interest

To demonstrate a "direct financial interest" Plaintiff must prove that "there is a causal relationship between the infringing activity and any financial benefit a defendant reaps." Ellison

v. Robertson, 357 F.3d 1072, 1079 (9th Cir. 2004) (no reasonable jury could find that defendant received a direct financial benefit because there was no evidence that defendant attracted or

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retained customers due to the infringement or lost customers after the infringement ceased). c. Plaintiff is not entitled to more than one statutory damage award.

Plaintiff is entitled to only one statutory damage award from jointly and severally liable defendants. See Screen Gems-

Columbia Music, Inc. v. Metlis & Lebow Corp., 453 F.2d 552, 554 (2nd Cir. 1972) (Copyright Act allows only a single recovery for single infringement despite multiple defendants with joint and several liability); Bouchat v. Champion Products, Inc., 327 F. Supp. 2d 537, 552-53 for (D. Md. 2003) (rejecting damage as "absurd," from

Plaintiff's

claim

separate

statutory

awards

hundreds of defendants arising out of a single infringement); Warner Bros., Inc. v. Dae Rim Trading, Inc., 677 F. Supp. 740, 769 (S.D.N.Y. 1988) ("where two or more persons join in or

contribute to a single infringement, they are all jointly and severally liable but `in such is but circumstances a single set in of a single

infringement damages.'"). F.

action

there

statutory

STIPULATIONS AND UNDISPUTED FACTS The parties stipulate to the following facts:

Pre-contract 1. Upside Magazine ("Upside") hired Plaintiff to shoot

photographs of Avnet CEO Roy Vallee. 2. Upside published one of Plaintiff's photographs ("Photo

1") in an article about Mr. Vallee. 3. Avnet Chief Communications Officer Allen Maag saw the

photograph of Mr. Vallee in a draft or final version of Upside's July 2001 issue. Case 2:04-cv-00621-SRB Document 264 Filed 07/19/2006 Page 13 of 71

4.

Mr.

Maag

contacted

Upside's

Editor-in-Chief

Jerry

Borrell, and obtained permission from Upside to use the photo. 5. Photo 1 (Roy Vallee looking at the camera resting on

his left arm with a window behind his head) was obtained from two sources. 6. At the request of Jan Jurcy, on or about June 27, 2001,

an Avnet employee scanned Photo 1 from Upside Magazine and saved it as "roy4ink.jpg." 7. Avnet also received a physical copy of Photo 1 from

Upside, which Javed Badar scanned and saved as "roy_2.tif," on or about August 8, 2001. 8. 27, 2001 Photo 1 ("roy4ink.jpg." version) was used in the June issue of "AvnetInk Online," an e-mail sent to

approximately 8,000 employees, 100 stock analysts, Avnet's public relations firm, and a few journalists who follow the industry. The e-mail provided a link to an Avnet intranet site, where Photo 1 ("roy4ink.jpg.") was posted between approximately June 27, 2001 and February 2004. 9. Photo 2001 1 ("roy_2.tif" of version) Global was used in the

July/August

edition

Avnet

Perspective

Magazine

("AGP") (approximately 16,000 copies printed). 10. Photo 1 ("roy_2.tif" version) was used in the September

2001 edition of AGP (approximately 16,000 copies printed). 11. Plaintiff contacted Avnet employee Sean Fanning, and

informed him that he had not been paid by Upside for the Roy Vallee photo shoot, and requested compensation from Avnet. 12. 13. Mr. Fanning suggested that Plaintiff contact Mr. Maag. Plaintiff contacted Mr. Maag and stated that he had

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recently learned of Avnet's unauthorized use of his photograph. 14. Mr. Maag explained that he obtained the photograph from

Upside and used it with Upside's permission. 15. Plaintiff informed Mr. Maag that he held the copyright

and requested payment for the use of the photograph. 16. Plaintiff also stated that Upside had gone out of

business without paying his fee for the photo shoot and requested compensation from Avnet. 17. In a January 10, 2002 e-mail Plaintiff advised Mr. Maag

that the licensing fee for the two uses in AGP (if negotiated in advance) would have been $850 ($425 per use). 18. In the same e-mail, Plaintiff stated that he had never

been paid his $1,192.75 fee by Upside. 19. Plaintiff and Mr. Maag met on March 6, 2002 regarding

Upside's failure to pay Plaintiff, Avnet's use of the photograph obtained from Upside, and licensing of future rights to use

Plaintiff's photos. 20. Plaintiff and Mr. Maag agreed that Avnet would pay

$2,500 for the use of the photo obtained from Upside and future use of the photo and several others from the same photo shoot. 21. On April 10, 2002, Plaintiff e-mailed Coogan

Photographic Invoice No. 2002-1212 (the "Invoice") for $2,500 to Mr. Maag. 22. The Invoice one granted year, Avnet rights to use Plaintiff's use in

photographs

for

but

specifically

excluded

Avnet's Annual Report and transfer of rights to third parties. 23. 25. Avnet paid Plaintiff $2,500 by check.

Post-Contract

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24.

Plaintiff provided Photo 2 (Roy Vallee leaning on his

right arm looking at the camera with several windows behind him) to Avnet pursuant to the Invoice. Photo 2 electronically as: a. b. c. d. e. f. g. h. i. 25. tif_300dpi_roy_vallee_board.tif vallee_small.tif vallee.jpg rv.jpg jpg_72dpi_roy_vallee_board.jpg thumbnails_roy_vallee_board.jpb valle_r.jpb vallee_r_small.jpg vallee_small_blur.tif Javed Badar scanned and stored

Photo 2 was used in: a. b. c. d. The July/August 2002 edition of AGP (approximately 16,000 copies printed). The September/October 2003 edition of AGP (approximately 16,000 copies printed). The November/December 2003 edition of AGP (approximately 16,000 copies printed). Avnet's 2003 Annual Report (printed and electronic versions). The electronic version was available on Avnet.combeginning on or about October 1, 2003 and modified in February or March 2004 to remove Plaintiff's photograph. Print versions of the 2003 Annual Report were available for distribution in approximately October 2003. Distribution of the printed version of the Annual Report containing Plaintiff's photograph continued until October 2005. Secondary page of Avnet's website. Photo 2 was posted on a secondary page (the Press Room) at Avnet.com between August 28, 2002 and February 25, 2004. The photograph was available for download by those accessing the website. Homepage of Avnet's website. Photo 2 was posted on the homepage at Avnet.com for a disputed period of time. The February 9-15, 2003 issue of an Avnet e-mail publication, "This Week at Avnet." The publication was sent to approximately 8,000 Avnet employees, including the Board of Directors. It may also have been sent to three outside contractors. The photo was archived on Avnet's intranet site between February 2003 and February 2005. The March 2-6, 2003 issue of This Week at Avnet. The publication was sent to approximately 8,000 Avnet employees, including the Board of Directors. It may also have been sent to three outside Document 264 Filed 07/19/2006 Page 16 of 71

e.

f. g.

h.

Case 2:04-cv-00621-SRB

i.

j.

k. l.

m.

n. o.

contractors. The photo was archived on Avnet's intranet site between February 2003 and February 2005. The January 25-31, 2004 issue of This Week at Avnet. The publication was sent to approximately 8,000 Avnet employees, including the Board of Directors. It may also have been sent to three outside contractors. The photo was archived on Avnet's intranet site between February 2003 and February 2005. CRN interview ­ Photo 2 was made available to CRN for its interview of Roy Vallee. CRN used Photo 2 on or about January 30, 2004 in electronic and printed versions of the interview. GCIT ("Governor's Council on Innovation and Technology") website. Photo 2 appeared on this website between April 2003 and December 2005. Supply-Chain Council used Photo 2 in a newsletter announcement and a seminar brochure, both available in printed form, and on Supply Chain's website. Morgan Stanley conference brochure. Photo 2 was used in a print program made available to the attendees of the "Annual Semi-Conductor and Systems Conference" in Dana Point, California on March 2, 2004. AZCentral.com ­ It is believed that Photo 2 was obtained by AZCentral.com from the "Press Room" on a date on or after August 28, 2002. ChannelWEB ­ It is believed that Photo 2 was obtained by Channel web from the "Press Room" on a date on or after August 28, 2002.

26.

Plaintiff provided Photo 3 (Roy Vallee looking to his

left with his hands folded in the foreground) to Avnet pursuant to the Invoice. Javed Badar scanned and stored Photo 3

electronically as "vallee_r.tif" and "global_perspective_b.eps". 27. Photo 3 was used in: a. b. c. d. The September/October 2002 edition of AGP (approximately 11,000 copies printed). The January/February 2003 edition of AGP (approximately 11,000 copies printed). The July/August 2003 edition of AGP (approximately 11,000 copies printed). Avnet's 2002 Annual Report (printed and electronic versions). The electronic version was available for on Avnet.com beginning on or about October 8, 2002 and was modified in February or March 2004 to remove Plaintiff's photograph. Print versions of the 2002 Annual Report were available for distribution in approximately October 2002. Document 264 Filed 07/19/2006 Page 17 of 71

Case 2:04-cv-00621-SRB

e. G.

Distribution of the printed version of the Annual Report containing Plaintiff's photograph continued until October 2005. One 50th anniversary card was created on August 8, 2002 and presented to Mr. Vallee.

PLAINTIFF'S CONTENTIONS OF DISPUTED FACT Plaintiff's Disputed Contentions of Fact are as follow: 1. During the time Defendants jointly, willfully infringed

Plaintiff's copyright, Defendant Allen Maag's compensation was directly tied to his success in promoting and marketing Avnet and, indeed, to Avnet's profitability and profits. 2. During the time Defendants jointly, willfully infringed

Plaintiff's copyright, Defendant Allen Maag was paid a salary, a bonus that was dependent on company performance, and he received at least a pension plan, stock options, health insurance, and a car allowance, all as part of his employment. 3. Defendant Roy Vallee received Notice of Suit filing via

counsel on or before May 3, 2004 (when his original waiver of service was filed). 4. of As alleged in detail by the Complaint, the GCIT's use photograph of Mr. Vallee was an unauthorized, display of

Plaintiff's

infringing

distribution,

reproduction,

and/or

Plaintiff's Photograph. 5. Avnet, Inc. CEO, GCIT Board Member, and Defendant Roy

Vallee attended GCIT meetings on September 15, 2004, October 25, 2004, January 26, 2005, and May 18, 2005. 6. 7. The GCIT infringement continued through December 2005. Defendant Roy Vallee had the power to stop the GCIT

infringement in December 2005. 8. Defendant Roy Vallee had the power to stop the GCIT

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infringement when he accepted service of the complaint in May 2004. 9. Plaintiff's photograph was transferred for use to the

GCIT by Defendant Avnet, Inc., through Karen Zoppoth, assistant to Defendant Roy Vallee at Avnet, Inc. at the time, on or near the April 7, 2003 transfer date. 10. When Mr. Vallee was appointed to the GCIT, Avnet sent a

This Week at Avnet email publication including at least one of Plaintiff's photographs, to approximately 8,000 Avnet employees, including the Board of Directors, as an employee relations

document, announcing this news. 11. Avnet admits that the This Week at Avnet email

publication that announced that Mr. Vallee was appointed to the GCIT may also have been sent to three outside contractors. 12. The news of Mr. Vallee's appointment to the GCIT was

transmitted widely by Avnet and others, ultimately reaching the News archives for Southbridge, Massachusetts US-NEWS-WATCH.COM

site, Copyright us-news-watch.com 2003, with a live link to the website with Plaintiff's photograph See CGN at 01230-

http://www.gcit.az.gov/members/Roy_Vallee.html. 01232. It is still listed there now at

http://us-news-

watch.com/Massachusetts/Southbridge.html. 13. Over the years, when The Business Journal, Phoenix

released its August 27, 2004 print edition and posted same on the web, Tech Industry Gets a Jump on '05 Legislative Session and discussed the GCIT and how "Roy Vallee, chairman and CEO of Avnet Inc. will lead the Brand/Image Development and Awareness group" (the instant lawsuit was five months in progress), and

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Plaintiff's photograph remained with Mr. Vallee's biography on http://www.gcit.az.gov/members/Roy_Vallee.html. 14. When the Arizona Technology Council posted The Business

Journal, Phoenix article, dated September 3, 2004, Tech Industry Gets a Jump on '05 Legislative and Session, the on GCIT its and website how at

www.aztechcouncil.org,

discussed

"Roy

Vallee, chairman and CEO of Avnet Inc. will lead the Brand/Image Development and Awareness group", Plaintiff's photograph remained with Mr. Vallee's biography on

http://www.gcit.az.gov/members/Roy_Vallee.html. 15. When the Arizona Department of Commerce released a

February 25, 2005 press release announcing CEO'S Vote Arizona Top Five for Business, and discussed how "the Governor's Council on Innovation and Technology (GCIT) established a marketing

committee that has been working since last July to target CEO's nationwide. Avnet Chair and CEO Roy Vallee Chairs the Committee and says the magazine survey validates the approach his group is taking", this lawsuit was less than one year old, and Plaintiff's photograph remained with Mr. Vallee's biography on

http://www.gcit.az.gov/members/Roy_Vallee.html. 16. When the State of Arizona Executive Office News Release

was released as a press release dated October 25, 2005 announcing Governor Names New Co-Chairs for Tech Council, and one those cochairs named was Defendant with Roy Vallee, Plaintiff's biography photograph on

remained

his

http://www.gcit.az.gov/members/Roy_Vallee.html. 17. For Tech When the article Arizona Governor Names New Co-Chairs Council was published by Government Technology at

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http://www.govtech.net on November 8, 2005, and one those cochairs named was Defendant with Roy Vallee, Plaintiff's biography photograph on

remained

his

http://www.gcit.az.gov/members/Roy_Vallee.html. 18. According to Alexa.com, the GCIT website at

http://www.gcit.az.gov has a reach of 10,000 visitors a day. 19. All during the time Avnet, Inc. allowed Plaintiff's

Photographs to be displayed on Avnet's web pages, those pages containing Plaintiff's Photographs were automatically copied into the memory of the user's computer where they were displayed, estimated from Avnet's log files of files it claims were used its websites at over 200,000 times by at least 125,000 users. 20. All during the time Avnet, Inc. allowed Plaintiff's

Photographs to be downloaded from Avnet's web pages, those Annual Reports containing Plaintiff's Photographs were reproduced in

90,000 copies. 21. Avnet allowed an untold number of users to download

multiple derivative copies of Plaintiff's Photographs from its www.avnet.com website link to its Press Room page. 22. Defendant Avnet, Inc. made 55,000 copies of its

infringing printed 2002 Annual Report. 23. Avnet distributed most of those 55,000 copies of its

infringing printed 2002 Annual Report to shareholders, investors and others. 24. of its Avnet distributed at least some of those 55,000 copies infringing printed 2002 Annual Report as marketing

collateral. 25. Avnet's use of Plaintiff's photograph in its 2002

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Annual Report was a breach of the April 9, 2002 contract. 26. Defendant Avnet, Inc. made 60,000 copies of its

infringing printed 2003 Annual Report. 27. Avnet distributed most of those 60,000 copies of its

infringing printed 2003 Annual Report to shareholders, investors and others. 28. Avnet distributed some of those 60,000 copies of its

infringing printed 2003 Annual Report as marketing collateral. 29. By the time Avnet used Plaintiff's photograph in its

2003 Annual Report, it had already breached the April 9, 2002 contract. 30. Even when the instant lawsuit was in progress nineteen

months, and the Coogan contract attached to the complaint and the amended complaint both mentioned that the 2002 and 2003 Avnet Annual Reports could not include any of Plaintiff's photographs, Avnet distributed both infringing copies of printed 2002 and 2003 Annual Reports until October 2005. 31. Avnet saved over $112,000 by not reprinting and

distributing the 2002 and 2003 annual reports. 32. Based on Plaintiff's own experience, and the experience

of at least one of Plaintiff's witnesses, Avnet's claim "For requests made by individuals without access to Avnet's website, Avnet printed and mailed a non-infringing version. The

infringing picture in any remaining print versions could easily be obliterated using black ink." is patently false as to

distributed, printed, infringing annual reports.

Avnet promptly

delivered infringing versions of the 2002 and 2003 annual reports to Plaintiff and his witness(es) in October 2005, upon request.

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33.

At or nearly four months after Avnet, Inc.'s counsel

represented to the Court "Avnet used the photographs in its 2002 and 2003 Annual Reports and it distributed the photographs to third parties in violation of the terms contained on the Invoice. ... When Avnet learned that it had infringed on plaintiffs

copyright in the photographs, it immediately discontinued its use and distribution of the photographs", Avnet distributed both

infringing copies of printed 2002 and 2003 Annual Reports until October 2005. 34. At or nearly four months after Defendant Avnet, Inc.

corporate officer and individual Defendant Allen Maag stated in a sworn statement "Upon learning that Avnet had violated plaintiffs copyright in the photographs, I immediately ordered that all use and distribution of the photographs be stopped immediately",

Plaintiff learned that, Avnet distributed infringing copies of printed 2002 and 2003 Annual Reports until October 2005. 35. With respect to one of Plaintiff's Photographs of Roy

Vallee Photo 1, Avnet, Inc. reproduced it directly from Upside Magazine by scanning into a file named roy4ink.jpg. 36. an With respect to Photo 1, Avnet, Inc. distributed it in Avnetink Photographs Online to newsletter well over with of one of

infringing

Plaintiff's

8,100

persons

((approximately 8,000 employees, approximately 100 analysts who follow Avnet's stock, to an unidentified number of persons at Avnet's public relations firm, and to another unidentified number of (a few) journalists who follow the industry)). 37. The Avnetink Online newsletter included a link to a PDF

copy of the July 2001 Upside Magazine article The Evolution of

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Distribution photograph. 38. The

starting

it

with

Plaintiff's

2/3

page-size

reproduction

of

Plaintiff's

photograph

into

the

file roy4ink.jpg and the distribution of Plaintiff's photograph in the Avnetink by the into Online Coogan the newsletter, contract. Avnetink were The Online not included of the was in or

covered

merging

file the

roy4ink.jpg

newsletter

preparation of a derivative work, with Plaintiff's photograph. 39. of The scan of the Upside Magazine article The Evolution starting it with Plaintiff's 2/3 page-size

Distribution

photograph to link from the Avnetink Online newsletter, were not included in or covered by the Coogan contract. 40. With respect to one of Plaintiff's Photographs of Roy

Vallee (looking at the camera resting on his left arm with a window behind his head ­ Photo 1) Avnet, Inc. used another copy of one of Plaintiff's Photographs in a file named roy-2.tif, in 16,000 copies each of the July/August 2001 edition of Avnet

Global Perspective ("AGP"), created on August 10, 2001, and the September 2001 edition of AGP, created on September 19, 2001. 41. To make the file roy-2.tif, Avnet, Inc. reproduced by

scanning a copy of one of Plaintiff's copyrighted photographs (AVN1095) on or about August 8, 2001. 42. AVN1095 was an unauthorized copy of Plaintiff's

Photograph transferred without authority by now-defunct Upside Magazine. 43. Avnet's reproduction of AVN1095 was not covered by the

Coogan contract. 44. Plaintiff provided Avnet with evaluation-grade

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electronic versions of the Roy Vallee photographs to Avnet by email before the contract was paid. At the March 6, 2002 meeting

of Plaintiff and Al Maag, Plaintiff left Al Maag his color film. On July 9, 2002 Avnet then made electronic versions of the

photographs and on July 11, 2002 returned the film to Plaintiff. 45. All image files Avnet made and used thereafter came

directly from the electronic versions of the photographs Avnet made on July 9, 2002, or their progeny, which Avnet only used to generate reproductions and derivatives therefrom. 46. All image files used thereafter were reproductions

and/or derivate works made from those electronic versions of the photographs Avnet made on July 9, 2002, or their progeny. 47. The file to roy_2.tif make is another and rendition therefore of the

photograph

copied

roy4ink.jpg,

another

derivative thereof. 48. With respect to Photo 2, Avnet copied, created, made

derivatives of, and stored in files, (displayed in electronic and printed copies, and in some cases, distributed) named · tif_300dpi_roy_vallee_board.tif · vallee_small.tif · vallee.jpg · rv.jpg · jpg-72dpi_roy_vallee_board.jpg · vallee_r.jpg · thumbnails_roy_vallee_board.jpg · vallee_r_small.jpg · vallee_small_blur.tif · roy_vallee_board_big.jpg · roy_vallee_board.tif · vallee_r_1.eps · vallee_office_table.jpg 49. Third-party users used files named · 1081D_vallee.gif · roy_vallee_board3.jpg 50. Photo 2 was reproduced and distributed in approximately

16,000 copies of the AGP July/August 2002 edition. Case 2:04-cv-00621-SRB Document 264 Filed 07/19/2006 Page 25 of 71

51.

The copy of Photo 2 used in the AGP July/August 2002

edition was on page three, centered, accompanying the Message from the CEO column. 52. The copy of Photo 2 used in the AGP July/August 2002

edition was more cropped than the images Plaintiff provided Avnet in 2002. 53. The copy of Photo 2 used in the AGP July/August 2002

edition was a first derivative. 54. Another copy of Photo 2 was reproduced and distributed

in approximately 11,000 copies of the AGP September/October 2003 edition. 55. The copy of Photo 2 used in the AGP September/October

2003 was on page three, right-margin, accompanying the Message from the CEO column. 56. The copy of Photo 2 in the AGP September/October 2003

edition was more cropped than the copy of Plaintiff's Photograph in the July/August 2002 edition. 57. The copy of Photo 2 in the AGP September/October 2003

edition was a second derivative of Photo 2. 58. Another copy of Photo 2 was reproduced and distributed

in approximately 11,000 copies of the AGP November/December 2003 edition. 59. The copy of Photo 2 in the AGP November/December 2003

was on page three, centered, accompanying the Message from the CEO column. 60. The copy of Photo 2 in the AGP November/December 2003

edition was more cropped than the AGP July/August 2002 edition or in the AGP September/October 2003 edition.

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61.

The copy of Photo 2 in the AGP November/December 2003

edition was fourth derivative of Photo 2. 62. Another copy of Photo 2 was reproduced and distributed

in the 2003 Annual Report in printed and electronic copies of the 2003 Annual Report. The electronic version was available for

viewing, downloading, and printing from Avnet.com beginning on or about October 1, 2003 and continued through March 2004. 55,000

copies of the Print 2003 Annual Report were printed and then many copies were available for distribution in approximately October 2003, and the distribution of this version continued until

October 2005. 63. The copy of Photo 2 reproduced and distributed in the

2003 Annual Report was less cropped than Photo 2 as it appeared in the AGP July/August 2002 edition, the AGP September/October 2003 edition, or the AGP November/December 2003 edition. 64. The copy of Photo 2 reproduced and distributed in the

2003 Annual Report was a composite image; it consisted of a clear image of Photo 2 superimposed over a blurred image of Photo 2. 65. 66. 2003 This composite was still another derivative. The copy of Photo 2 reproduced and distributed in the Report was a fifth derivative of Plaintiff's

Annual

Photograph. 67. Avnet.com 68. The copy of Photo 2 reproduced and displayed on A copy of Photo 2 was reproduced and displayed on

Avnet.com was downloadable. 69. A copy of Photo 2 was reproduced and displayed on

secondary pages of Avnet.com.

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70.

The secondary pages of Avnet.com include but are not

limited to the Board of Directors pages of Avnet.com. 71. The secondary pages of Avnet.com include but are not

limited to the Board of Directors pages of Avnet.de. 72. The secondary pages of Avnet.com include but are not

limited to the Board of Directors pages of ir.Avnet.com. 73. A copy of Photo 2 was reproduced and displayed on Mr.

Vallee's biography page on Avnet.com 74. A copy of Photo 2 was reproduced and displayed on Mr.

Vallee's biography page on Avnet.de 75. A copy of Photo 2 was reproduced and displayed on Mr.

Vallee's biography page on ir.Avnet.com 76. A copy of Photo 2 was reproduced and displayed on

Avnet.tv/cnnfn. 77. A copy of Photo 2 was reproduced and displayed on

Avnet.tv/corporate/webseminars 78. secondary A copy of Photo 2 was reproduced pages and displayed on as

photograph

such

http://www.avnet.com/img_shared/sta/df3df3usa/vallee_r_small.jpg. 79. displayed A copy on of Plaintiff's Photograph was reproduced such and as

secondary

photograph

pages

http://www.avnet.com/img_shared/sta/df3df3usa/roy_vallee_board.jp g. 80. displayed A copy on of Plaintiff's Photograph was reproduced such and as

secondary

photograph

pages

http://www.avnet.de/img_shared/sta/df3df3usa/roy_vallee_board.jpg 81. displayed A copy on of Plaintiff's Photograph was reproduced such and as

secondary

photograph

pages

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http://www.ir.avnet.com/img_shared/sta/df3df3usa/roy_vallee_board .jpg 82. displayed A copy on of Plaintiff's Photograph was reproduced such and as

secondary

photograph

pages

http://www.avnet.com/img_shared/sta/df3df3usa/roy_vallee_board_bi g.jpg. 83. displayed A copy on of Plaintiff's Photograph was reproduced such and as

secondary

photograph

pages

http://www.avnet.de/img_shared/sta/df3df3usa/roy_vallee_board_big .jpg 84. displayed A copy on of Plaintiff's Photograph was reproduced such and as

secondary

photograph

pages

http://www.ir.avnet.com/img_shared/sta/df3df3usa/roy_vallee_board _big.jpg 85. Three versions of Plaintiff's Photograph(s) was

reproduced and displayed on Avnet's Press Room. 86. Three versions of Plaintiff's Photograph(s) were

downloadable from Avnet's Press Room. 87. One of the three copies of Plaintiff's Photograph on

Avnet's Press Room was a tif file. 88. One of the three copies of Plaintiff's Photograph on

Avnet's Press Room was a JPEG file. 89. Two of the three copies of Plaintiff's Photograph on

Avnet's Press Room were JPEG files. 90. The rv.jpg image remained from February 2003 through

February 2005 as an archive on Avnet's intranet site. The image was used in an an issue article dated Vallee February Named 9 to through Arizona 15, 2003

accompanying

Governor's

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Council on Innovation and Technology, in an issue for the week of March 2 through March 6, 2003 accompanying an article Vallee Appointed to Synopsys Board of Directors, and an issue for the week of January 25 through January 31, 2004 accompanying a front page article Vallee to Chair GTDC Industry, while another image, named townhall_fy04q2.tif, obviously a composite image including the rv.jpg image and therefore a derivative thereof, appeared on page two of this email, accompanying an article Q2 FY04 Town Hall Broadcast February 4, 2004. 91. The electronic copies of Plaintiff's Photograph (the

file rv.jpg) were used in differing sizes in each of three issues of an e-mail publication called "This Week at Avnet". These

differing sizes show the file rv.jpg was cropped several times, making derivative copies. 92. The rv.jpg image that remained from February 2003

through February 2005 as an archive on Avnet's intranet site, allowed access to it and access to use it by any Avnet personnel having access to that intranet site. 93. Three versions of this photograph were placed in the

"Press Room" and available for download by users accessing the website. These images were placed in the "Press Room" at the end of August 2002 and removed from the "Press Room" in February 2004. 94. While three versions of this photograph were placed in

the Avnet "Press Room", they were downloadable. 95. While three versions of this photograph were placed in

the Avnet "Press Room", they were downloaded an untold number of times, often by unknown third parties.

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96.

A Coogan Photograph was used without authorization by

CRN Magazine, a division of CMP Publications, LLC. 97. Avnet personnel transferred an electronic copy of the

Coogan photograph in a file named vallee_office_table.jpg in an email to CRN personnel, Distribution Editor, Scott Campbell. 98. CRN published and displayed a web-based article on Roy

Vallee and Avnet with this image being the only image of Roy Vallee accompanying the article to in the file users 1081d_vallee.gif at

available

www.crn.com/Sections/Interview/interview.asp?ArticleID=47494. 99. CRN also published a larger, differently cropped

version of this Coogan image in the February 2, 2004 issue of CRN Magazine, distributing resellers, approximately distributors" 110,000 for its copies to "To of IT Roy

executives,

interview

Vallee for public relations purposes. 100. CRN Magazine then allowed ChannelWEB, another division of CMP Publications, LLC to use the Coogan Photograph, and it appeared in a ChannelWEB web-based article reporting on the CRN article above in a publication entitled CRN Interviews Avnet's Roy Vallee, formerly available at

www.channelweb.com/sections/Newscenters/Article.asp?newscenterID= 47494. 101. The "This Week at Avnet" e-mail publication issue for the week of January 25 through January 31, 2004 with its front page article Vallee to Chair GTDC Industry, was published just as Mr. Vallee's interview at

www.crn.com/Sections/Interview/interview.asp?ArticleID=47494 appeared on the web.

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102. A Coogan Photograph was used without authorization by GCIT (the website known as the "Governor's Council on Innovation and Technology") 103. Karen Zoppoth of Avnet, Inc., assistant to Roy Vallee sent an email with the web page to link Sandra

www.avnet.com/pressroom/bios/officers/vallee_r.html

Watson of the GCIT on April 7, 2003 at 9:06 AM with a weblink. 104. This weblink appears to have linked to the then-present on Avnet.com bio of Mr. Vallee. Since Mr. Vallee's bio on that day contained an electronic copy of Plaintiff's Photograph and the same photograph ultimately appeared on Mr. Vallee bio on the GCIT website, the parties believe that a photograph was sent to the GCIT by Avnet or the GCIT obtained the photograph from the Avnet website soon thereafter. 105. The infringing Coogan photograph was posted in

connection with Mr. Vallee's bio on the GCIT site and the parties stipulate this started in April 2003. Mr. Vallee's bio with a copy of Plaintiff's Photograph remained on the GCIT site until December 2005. 106. Mr. Vallee attended GCIT meetings September 15, 2004, October 25, 2004, January 26, 2005, and May 18, 2005. 107. Since the copy of Plaintiff's Photograph on the GCIT site had a shadowed background no image produced by Avnet, Inc. had, it is a derivative from the one on Mr. Vallee's bio. 108. A Coogan Photograph was used by Supply-Chain Council, Inc. 109. Roy Vallee was supposed to be a speaker at the 2003 Supply-Chain Council Conference.

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110. The conference Photographs. 111. The

brochure a

announcing reproduction

the of

Supply-Chain one of

Council

included

Plaintiff's

Supply-Chain

Council

website

announcing

the

conference displayed at least one of Plaintiff's Photographs in a file named roy_vallee_board3.jpg. 112. A Coogan Photograph was used by Morgan Stanley. 113. Two emails with links to at least one of Plaintiff's Photographs were sent by Avnet, Inc. employee Bryan Carter to Todd Wertheimer of Morgan Stanley on or about February 18, 2004. In response to both emails, Todd Wertheimer, the Morgan Stanley representative, indicated he could not access the photograph, as sent. 114. On March 14, 2006 Avnet disclosed that it understood that the image was not used in electronic form by Morgan Stanley. Instead, Morgan Stanley incorporated the image in a print program made available to the attendees and Systems of a conference in called Dana the

"Annual

Semi-conductor

Conference"

Point,

California on March 2, 2004. 115. A recent currently-outstanding subpoena, permitted

post-discovery by defense counsel to plaintiff counsel on June 5, 2006, seeks "The print program made available to the attendees of the "Annual Semi-conductor and Systems Conference" in Dana Point, California on March 2, 2004, all records related to printing and distributing same, and all records related to the March 2, 2004 Annual Semi-conductor and Systems Conference showing attendees, the number of attendees, and monies taken in" on June 20, 2006. 116. AZCentra1.com ­ One of Plaintiff's Photographs of Roy

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Vallee appeared in an article about Avnet. that the photograph was obtained by

The parties believe from the

AZCentral.com

Avnet.com "Press Room" on a date on or after August 28, 2002. 117. With respect to a third one of Plaintiff's Photographs of Roy Vallee looking to his left with his hands folded in the foreground (Photo 3), Avnet copied, created, made derivatives of, and stored the photograph in files, (displayed in multiple

electronic and printed copies, and in some cases, distributed) named vallee_r.tif, global_perspective_b.eps and vallee_r_2.eps. 118. Photo 3 was reproduced and distributed in approximately 11,000 copies of the AGP September/October 2002 edition on page two, centered, accompanying Message from the CEO column. 119. The version of Photo 3 in the AGP September/October 2002 edition was more cropped than the version of Photo 3

Plaintiff provided Defendants. 120. The version of Photo 3 in the AGP September/October 2002 edition was a first derivative of Photo 3. 121. Another copy of Photo 3 was reproduced and distributed in approximately 11,000 copies of the AGP January/February 2003 edition on page two, left-margin, accompanying Message from the CEO column. 122. The copy of Photo 3 reproduced and distributed in the AGP January/February 2003 edition was more cropped than the copy of Plaintiff's Photograph that was reproduced and distributed in the AGP September/October 2002 edition. 123. The copy of Photo 3 in the AGP January/February 2003 edition was a second derivative of Photo 3. 124. Another copy of Photo 3 was reproduced and distributed

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in approximately 11,000 copies of the AGP November/December 2003 edition on page ten, large-sized accompanying article

Distribution Still Vital After All These Years. 125. The version of Photo 3 in the AGP November/December 2003 edition was more cropped than the all of the other versions, only showing Mr. Vallee's head, neck, and collar area. 126. The version of Photo 3 in the AGP November/December 2003 edition was a third derivative. 127. The same version of Photo 3 as in the AGP

January/February 2003 edition was reproduced and distributed in approximately 11,000 copies of the AGP July/August 2003 edition. 128. A Coogan Photograph was used without authorization in the 2002 Annual Report. 129. A copy of one of Photo 3 was reproduced and distributed in the 2002 Annual Report in printed and electronic copies of the 2002 Annual Report. 130. The same version of Photo appeared 3 in as the in the AGP

September/October Report.

2002

edition

2002

Annual

131. The electronic version of the 2002 Annual Report was available for viewing, downloading, and printing from Avnet.com beginning on or about October 8, 2002 and continued through

February 2004. 132. Approximately 64,000 copies of the electronic version of the 2002 Annual Report were downloaded. 133. Avnet had 55,000 copies of the Print 2002 Annual Report printed and then copies were available for distribution in

approximately October 2002. The distribution of this version of

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the 2002 Annual Report continued until October 2005. 134. For Director of the occasion of Avnet's Javed 50th anniversary, reproduced Avnet and

Creative

Services

Badar

distributed a copy of Plaintiff's Photograph in a single copy of a 50th anniversary card, which he created for Roy Vallee, CEO of Avnet. Vallee. 135. Avnet, served on Inc.'s 1, 3rd Supplemental for the Disclosure first time Statement, disclosed The card was handed personally by Javed Badar to Roy

December

2005,

documents indicating how many copies of the two annual reports were made by Avnet, Inc., using any one of Plaintiff's

photographs. 136. Avnet, Inc.'s 4th Supplemental Disclosure Statement,

served on December 6, 2005, for the first time disclosed at least the first complete with any set one of of printed Avnet Global Perspective the first

Magazines

Plaintiff's

photographs,

complete copies of printed Avnet 2002 or 2003 Annual Reports ever served by Defendants to Plaintiff, and the first prints of

assorted files Avnet used (though PDF files of the magazines and the annual reports, and image files of the assorted picture files were provided by Defendants electronically on CD by letter on October 17, 2005). 137. Avnet, Inc.'s 5th Supplemental Disclosure Statement,

served on December 22, 2005, for the very first time disclosed documents indicating how many Annual Reports were distributed by Avnet-vendor group emails of to Corporate for Communications Annual Reports, Center, and a Inc., select a select of

requests and

group

from

Avnet

personnel

(and

responses,

including

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Morgan Stanley personnel) from February and March 2004. 138. Avnet, Inc.'s 6th Supplemental Disclosure Statement,

served on December 28, 2005, for the very first time disclosed documents concerning Allen Maag's earnings, performance reviews, and stock and pension plan. 139. Avnet, served on Inc.'s 29, 7th Supplemental for the Disclosure first a time select Statement, disclosed group of

December concerning

2005,

documents

Avnet's

invoices

for

Annual Reports, Allen Maag's stock options, and an email showing Avnet transferred at least one of Plaintiff's photographs to the GCIT. 140. Avnet, Inc.'s 8th Supplemental Disclosure Statement,

served on January 5, 2006, for the first time disclosed documents concerning additional years' on two appraisal forms and 3 fiscal year income plans for Allen Maag, pension plan documents for Allen Maag, and Allen Maag's earnings statements. 141. Allen Maag's biography on the Avnet.com website says Mr. Maag "is responsible for brand management, which includes global public relations, investor relations marketing, community relations and corporate communications". 142. Defendants served Avnet's Second Supplemental Response to Plaintiff's First Set of Interrogatories to Defendant Avnet, Inc. - Interrogatory No. 4, on March 14, 2006. 143. Avnet's First Set of Second Supplemental to Response to Plaintiff's Inc. in a

Interrogatories No. 4 was the

Defendant time Avnet

Avnet,

Interrogatory

first

revealed

discovery document that one of Plaintiff's photographs sent by Avnet, was actually used by the Morgan Stanley firm.

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144. Avnet's First Set of

Second

Supplemental to

Response

to

Plaintiff's Inc. in a

Interrogatories No. 4 was the

Defendant time Avnet

Avnet,

Interrogatory

first

revealed

discovery document that one of Plaintiff's photographs was used in the July 27, 2001 edition of Avnetink Online. 145. Avnet's First Set of Second Supplemental to Response to Plaintiff's Inc. in a

Interrogatories No. 4 was how the many

Defendant time Avnet

Avnet,

Interrogatory discovery

first of

revealed Avnet

document

any

issue

of

Global

Perspective magazines were printed. 146. Avnet's First Set of Second Supplemental to Response to Plaintiff's Inc. -

Interrogatories

Defendant

Avnet,

Interrogatory No. 4 was the first time Avnet revealed that the image valle_r_small.jpg found on the Avnet home page in February 2004, was only present there from January 24, 2004 to February 25, 2004. 147. Avnet's First Set of Second Supplemental to Response to Plaintiff's Inc. -

Interrogatories

Defendant

Avnet,

Interrogatory No. 4 was the first time Avnet revealed that Javed Badar used any card, one of he Plaintiff's created photographs and in a to 50th Roy

anniversary Vallee.

which

for

delivered

148. The October 17, 2005 letter sent to Plaintiff's counsel by Defendants' counsel was the first time Avnet revealed to

Plaintiff that any one of Plaintiff's photographs was used by Phoenix Newspapers, Inc. on AZCentral.com. 149. The October 17, 2005 letter sent to Plaintiff's counsel by Defendants' counsel was the first time Avnet revealed to

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Filed 07/19/2006

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Plaintiff that any one of Plaintiff's photographs was used by ChannelWeb.com. 150. Each display and each reproduction of a page containing any of Plaintiff's Photographs that Avnet, Inc. made available on its website is a separate and distinct use. Additionally: o Avnet unlawfully reproduced and stored the file vallee_r_small.jpg, and made it available for display or download (third party distribution/reproduction) at both www.avnet.com and http://www.avnet.com/img_shared/sta/df3df3usa/vallee_ r_small.jpg. If this home page use was only during February 2004, and its reproduction and dual display capability was infringing from the start. If this home page use was also in 2002 and 2003, these uses occurred while the contract was in force, but the contract was breached, making each of these uses infringing. The image vallee_r_small.jpg is a 72 x 100 @ 72 dpi jpeg image. o Avnet unlawfully reproduced and stored the file roy_vallee_board.jpg, and made it available for display or download (third party distribution/reproduction) at http://www.avnet.com/sta/home/0,2007,RID%253D10146%25 26CID%253D10323%2526CCD%253DUSA%2526SID%253D9358%2526 DID%253DDF3%2526LID%253D9974%2526BID%253DDF3%2526CTP% 253DSTA,00.html, http://www.avnet.com/img_shared/sta/df3df3usa/roy_val lee_board.jpg, http://www.avnet.de/img_shared/sta/df3df3usa/roy_vall ee_board.jpg, and http://www.ir.avnet.com/img_shared/sta/df3df3usa/roy_ vallee_board.jpg. These uses started August 28, 2002 and continued until February 25, 2004. These uses occurred while the contract was in force, but the contract was breached, making each of these uses infringing. The image roy_vallee_board.jpg is an 80 x 110 @ 72 dpi jpeg image. o Avnet unlawfully reproduced and stored the file roy_vallee_board-big.jpg, and made it available for display or download (third party distribution/reproduction) at http://www.avnet.com/sta/home/0,2007,RID%253D10146%25 26CID%253D10323%2526CCD%253DUSA%2526SID%253D9358%2526 DID%253DDF3%2526LID%253D9974%2526BID%253DDF3%2526CTP% 253DSTA,00.html, http://www.avnet.com/img_shared/sta/df3df3usa/roy_val lee_board-big.jpg, http://www.avnet.de/sta/home/0,2007,RID%253D10146%252 6CID%253D10323%2526CCD%253DUSA%2526SID%253D9358%2526D ID%253DDF3%2526LID%253D9974%2526BID%253DDF3%2526CTP%2 53DSTA,00.html, http://www.avnet.de/img_shared/sta/df3df3usa/roy_vall Case 2:04-cv-00621-SRB Document 264 Filed 07/19/2006 Page 39 of 71

ee_board-big.jpg, http://www.ir.avnet.com/sta/home/0,2007,RID%253D10146 %2526CID%253D10323%2526CCD%253DUSA%2526SID%253D9358%2 526DID%253DDF3%2526LID%253D9974%2526BID%253DDF3%2526C TP%253DSTA,00.html and http://www.ir.avnet.com/img_shared/sta/df3df3usa/roy_ vallee_board-big.jpg. These uses started August 28, 2002 and continued until February 25, 2004. These uses occurred while the contract was in force, but the contract was breached, making each of these uses infringing. The image roy_vallee_board-big.jpg is a 448 x 616 @ 72 dpi jpeg image. o Avnet unlawfully reproduced and stored the file and roy_vallee_board.tif, and made it available for display or downloa