Free Response to Motion - District Court of Arizona - Arizona

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

FENNEMORE CRAIG, P.C. Jordan Green (No. 001860) Lawrence Palles (No. 020263) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Attorneys for Defendants Avnet, Inc., Roy Vallee, and Allen Maag UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, Plaintiff, v. AVNET, INC., et al., Defendants. No. CV2004-0621 PHX SRB DEFENDANTS'RESPONSE TO PLAINTIFF' THIRD MOTION IN S LIMINE (TO EXCLUDE A CERTAIN WITNESS, SOME DOCUMENTS, AND TESTIMONY RELATED THERETO FROM EVIDENCE)

Plaintiff seeks an order precluding introduction of testimony from Vince Adam (or any other representative of Spark Design) and documents which demonstrate what Plaintiff and other photographers charged Avnet for the use of photographs similar to the infringing uses in this case. Plaintiff incorrectly argues that Mr. Adam' testimony should be precluded s because he lacks sufficient expertise regarding stock photography and is biased. See Plaintiff' Motion at pp. 3-4, 7. Mr. Adam will testify strictly as a fact witness regarding s prices Spark Design charged and quoted to Avnet for the use of photographs similar to the infringing uses in this case. This testimony is relevant to establishing the value of

Plaintiff' photographs, Avnet' uses and the reasonableness of the licensing fees sought s s by Plaintiff as actual damages. Mr. Adam' alleged bias is a credibility issue for trial, not s
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a basis for disqualification. Plaintiff incorrectly claims that the invoices from Plaintiff and other photographers are irrelevant because they relate to "assignment photography," and predate the time of the infringement. Plaintiff' actual damages must be determined based on the market s value of his photographs or the amount of a reasonable license fees for Avnet' infringing s uses. The invoices are directly relevant to the determination of the market value of Plaintiff' photographs and reasonable license fees for their use. Plaintiff' argument that s s the invoices are irrelevant because they predate the infringement is unintelligible and without legal support.
I. LEGAL ANALYSIS

A.

Determination of Plaintiff' Actual Damages. s

Plaintiff seeks recovery of his actual damages arising out of Avnet's infringement. "Actual damages" are "the extent to which the market value of a copyrighted work has been injured or destroyed by an infringement." Mackie v. Riser, 296 F.3d 909, 914 (9th Cir. 2002); Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 512 (9th Cir. 1985). The work' market value is "what a willing buyer would have been reasonably s required to pay to a willing seller for [the owner' work" at the time of the infringement. s] Polar Bear Productions, Inc. v. Timex Corp., 384 F.3d 700, 707 (9th Cir. 2004); Mackie, 296 F.3d at 917; Frank Music, 772 F.2d at 512. Evidence of the amount of plaintiff' s prior licensing fees for the same or similar works is relevant to determine actual damages. See On Davis v. Gap, Inc., 246 F.3d 152, 161 (2nd Cir. 2001); Baker v. Urban Outfitters, Inc., 254 F. Supp.2d 346, 357-59 (S.D.N.Y. 2003). The market value must be reasonable and based on the use the infringer made, not the highest use for which plaintiff might license the work. On Davis, 246 F.3d at 161; Baker, 254 F. Supp. 2d at 357-59; Barrera v. Brooklyn Music, Ltd., 346 F. Supp. 2d 400, 411 (S.D.N.Y. 2004).
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1.

Mr. Adam' fact testimony is relevant and admissible. s

Plaintiff incorrectly argues that Mr. Adam' testimony should be precluded because s he lacks sufficient expertise regarding stock photography. See Plaintiff' Motion at pp. 3s 4. Plaintiff' entire discussion regarding Mr. Adam' title and alleged lack of s s

qualifications misses the mark. See Plaintiff's Motion at p. 5. Mr. Adam will not offer expert testimony regarding stock photography or any other subject. He will testify strictly as a fact witness regarding prices Spark Design charged and quoted to Avnet for photographs and use licenses which are similar to the infringing uses in this case. These fees are relevant to establish the value of Plaintiff' photographs, "what a willing buyer s would have been reasonably required to pay to a willing seller for [the owner's] work" at the time of the infringement. See Polar Bear, 384 F.3d at 707; Mackie, 296 F.3d at 917; Frank Music, 772 F.2d at 512. Plaintiff similarly misses the mark in arguing that Mr. Adam should be disqualified as a witness because his business relationship with Avnet shows "an overwhelming bias." See Motion at p. 7. Mr. Adam' testimony is relevant because of his business relationship s with Avnet. It demonstrates what a willing buyer would have been reasonably required to pay to a willing seller at the time of the infringement. See Polar Bear, 384 F.3d at 707; Mackie, 296 F.3d at 917; Frank Music, 772 F.2d at 512. "Evidence of bias goes toward the credibility of a witness, not his competency to testify, and credibility is an issue for the jury." U.S. v. Abonce-Barrera, 257 F.3d 959, 965 (9th Cir. 2001). Plaintiff may crossexamine Mr. Adam regarding any alleged bias at trial. 2. The invoices demonstrate what Avnet would have paid for the infringing uses.

Plaintiff' reliance on Baker to argue that the invoices from Plaintiff and other s photographers are irrelevant because they relate to "assignment photography," is misplaced. See Motion at pp. 5-6. Baker addressed whether an expert' testimony s

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regarding the value of photographs was based on unreliable methods and data. 254 F. Supp. 2d at 353-54. 1 The invoices at issue have nothing to do with the use of reliable methodology by experts. Indeed, several of the invoices are for amounts Plaintiff charged to Avnet for similar photographs and uses immediately prior to the infringement. See AVN0029-32, attached with Exhibit B to Plaintiff' Motion. Plaintiff' actual damages s s must be determined based on the market value of his photographs or the amount of a reasonable license fees for the infringing uses. See On Davis, 246 F.3d at 161; Baker, 254 F. Supp. 2d at 357-59; Barrera, 346 F. Supp. 2d at 411. The invoices are directly relevant to the determination of the market value of Plaintiff' photographs and reasonable license s fees for their use. Id. Plaintiff also argues that the invoices are irrelevant because they predate the time of the infringement. He correctly notes that his actual damages must be based on the market value at the time of the infringement, not afterwards. See Motion at p. 6.

However, without citation to legal authority he concludes that invoices from before or at the time of the infringement are also irrelevant. See Motion at p. 6. 2 Invoices from at or before the time of the infringement are relevant for determining Plaintiff' actual s damages.
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The Baker court rejected the proffered expert' testimony for several reasons, including s her: (1) inclusion of an inapplicable "base fee" and admission that statements in her report regarding the base fee were inaccurate; (2) unsupported 100% increase in the base fee, (3) inappropriate addition of a $200,000 fee for unauthorized usage, (4) unsupported inclusion of a $10,000 "Model fee," and (5) unsupported inclusion of a $40,000 fee for colorization and addition of the defendant' logo to the photograph. 254 F. Supp. 2d at s 344-45.
2

1

Plaintiff' argument is unintelligible. He seems to argue that in 2002, "there was no ` s at the time of the infringement' because Avnet had a license for certain uses. See Motion at " p. 6. However, in the next sentence he states, "Avnet did not become liable for infringement until then and for all infringement thereafter, bringing in its two 2001 Avnet Global Perspective, and its previously undisclosed July 2001 Avnetink Online publication, back into infringing activity from then through October 2005." Id. It is unclear what point in time Plaintiff argues would constitute "the time of the infringement."
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II.

CONCLUSION Plaintiff' Motion should be denied because Mr. Adam' testimony and the s s

invoices are directly relevant to the determination of the market value of Plaintiff's photographs and the amount of a reasonable license fees for the infringing uses. Mr. Adam' qualification are irrelevant and any alleged bias is an issue of credibility for trial. s Plaintiff' argument regarding the time frame of the invoices is unsupported by the law. s DATED this 26th day of June, 2006. FENNEMORE CRAIG, P.C.

By s/Jordan Green Jordan Green Lawrence Palles Attorneys for Defendants Avnet, Inc., Roy Vallee, and Allen Maag

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P ROFES S I O N A L C O R P O R A T I O N P HOENIX

CERTIFICATE OF SERVICE I hereby certify that on June 26, 2006, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for s filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jordan Meschkow, Esq. Meschkow & Gresham, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818 Nancy Giles, Esq. Giles Legal PLC 733 W. Willetta Street Phoenix, Arizona 85007

s/Jordan Green

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