Free Trial Brief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

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'TRIAL MEMORANDUM

Defendants submit their Trial Memorandum regarding questions of law and evidentiary issues they anticipate will arise at trial. In the interest of avoiding duplication, issues that have been previously briefed by the parties are only identified, with citation to the relevant pleadings. Issues not previously addressed are briefly discussed. 1. Plaintiff' contract claims against Defendants Maag and Vallee fail as a s matter of law.

21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

Defendants Maag and Vallee cannot be liable for breach of contract because neither was a party to the contract between Plaintiff and Avnet. Kuehn v. Stanley, 208 Ariz. 124, 131, 91 P.3d 346, 353 (App. 2004); Stratton v. Inspiration Consolidated Copper Co., 140 Ariz. 528, 531, 683 P.2d 327, 330 (App. 1984). The Invoice created no rights between Plaintiff and Maag or Vallee. Id.
1806024.1/12444.027

Case 2:04-cv-00621-SRB

Document 237

Filed 06/19/2006

Page 1 of 6

1

2.
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

Plaintiff' copyright claims against Defendants Maag and Vallee fail as a s matter of law.

Defendants Maag and Vallee cannot be held individually liable for copyright infringement. The prerequisites for vicarious liability are: (1) the right and ability to supervise the infringing activity 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). This issue is fully briefed in Defendants' Response To Plaintiff' Motion For Holding Allen Maag s Jointly And Severally Liable As To Any Damages (Docket #127). Plaintiff cannot prove that Maag and Vallee had a direct financial interest in the infringing activity. 3. Computation of actual damages.

Plaintiff seeks to avoid computation of his actual damages based on the market value of his photos at the time of the infringement in accordance with Ninth Circuit law. His view is that a second infringement relieves him of proof of actual damages. This issue is fully briefed in: a. Defendants' Response To Plaintiff' Motion For Disqualifying s

Defendants' Expert John Trotto As An Expert Witness And To Exclude His Report And Testimony From Evidence (Docket #170); b. Defendants' Motion to Preclude Testimony of Plaintiff' Expert Jeff s

Sedlik (Docket #208) and Defendants' Reply in Support of Motion to Preclude (Docket #224); and c. Defendants' Motion to Preclude Testimony of Plaintiff' Expert s

Richard Weisgrau (Docket #184) and Defendants' Reply in Support of Motion to Preclude (Docket #197). 4. Plaintiff cannot recover Avnet' "profits" as a matter of law. s

Plaintiff' failure to establish a causal nexus between the infringement and any s revenue of Avnet, the insufficiency of proving only Avnet' gross revenue from all s
1806024.1/12444.027

Case 2:04-cv-00621-SRB

Document 237 2 Filed 06/19/2006

Page 2 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

sources and insufficiency of proving mere enhanced goodwill is fully briefed in: a. Defendants' Proposed Motion for Summary Judgment on Plaintiff' s

Claim for Recovery of Avnet' Profits (Exhibit 1 to Docket #187);1 s b. Defendants' Motion to Preclude Testimony of Plaintiff' Expert Jeff s

Sedlik (Docket #208) and Defendants' Reply in Support of Motion to Preclude (Docket #224); c. Defendants' Motion to Preclude Testimony of Plaintiff' Expert s

Richard Weisgrau (Docket #184) and Defendants' Reply in Support of Motion to Preclude (Docket #197); and d. Defendants' Response To Plaintiff' Motion In Limine To Exclude s

Defendants' Evidence Related To Gross Revenue Of Avnet, Inc., Deductible Expenses From Gross Revenue, And/Or Its Profit(s) Attributable To Factors Other Than The Copyrighted Work (Docket #222). 5. Double damage recovery prohibited.

Plaintiff cannot recover both copyright and contract damages. Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545, 1556 (9th Cir. 1989) (affirming dismissal of state contract claims because recovery would be duplicative of copyright damages previously awarded); Junker v. Eddings, 396 F.3d 1359, 1368 (D.C. Cir. 2005) (award of contract damages would constitute double recovery where infringement damages arising out of identical set of facts previously awarded); Sparaco v. Lawler, Matusky, Skelly Engineers, LLP, 313 F. Supp. 2d 247, 250-51 (S.D.N.Y. 2004) (a plaintiff cannot recover twice for the same injury). The prohibition on double recovery applies whether Plaintiff elects to recover actual or statutory damages. Sparaco, 313 F. Supp. 2d at 252-55. ...
1

The Court denied Defendants' Motion for Leave to File this Motion after the dispositive motion deadline. The Court stated that the Motion would be treated as a trial brief on the issue.
1806024.1/12444.027

Case 2:04-cv-00621-SRB

Document 237 3 Filed 06/19/2006

Page 3 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

6.

Preclusion of Plaintiff' Expert Witnesses. s

The Court should preclude testimony from Plaintiff' two damage experts (Jeff s Sedlik and Richard Weisgrau) and computer expert (Kelly Kuchta). a. Preclusion of Plaintiff' damage experts is fully briefed in s Defendants' Motion to Preclude Testimony of Plaintiff' Expert Jeff s Sedlik (Docket #208) and Defendants' Motion to Preclude Testimony of Plaintiff' Expert Richard Weisgrau (Docket #184). s b. Mr. Kuchta' testimony should be precluded because Plaintiff failed s to make expert disclosure pursuant to Fed. R. Civ. P. 26(a)(2)(B). 7. Preclusion of testimony by fact witnesses.

Plaintiff intends to call several witnesses to offer expert testimony on a variety of issues. Several of the witnesses are also offered to provide irrelevant fact testimony. Plaintiff has never identified any of these witnesses as experts or disclosed any written reports. Fed. R. Civ. P. 26(a)(2)(B). The witnesses identified by Plaintiff should be precluded from offering expert testimony at trial. Fed. R. Civ. P. 37(c)(1); Fed. R. Evid. 701. Their testimony regarding irrelevant factual matters (i.e., their customary fees for the use of photography by corporate clients) should also be precluded. See Fed. R. Evid. 401, 402. Plaintiff' Witness List identifies the following witnesses and expected testimony: s a. Juliet Chamberlain: (1) average amounts of photography used by corporations for business advertising and associated costs, (2) amount corporations expect to pay for use of photographs on a website, and (3) whether Avnet' public relations use of Plaintiff' photos was s s intended to create goodwill toward Roy Vallee and Avnet. Scott Condray: His knowledge and experiences in the national stock photography market, including where advertising and corporate customers have been purchasing stock photography for the last five years. The first time Plaintiff disclosed Mr. Condray as a witness was in his Witness List. Mr. Condray should not be permitted to testify since he was not timely disclosed. Rick Gayle: (1) his usual and customary fees for the use of photography by corporate clients, and (2) the value of Avnet' use of s Plaintiff' photos of Roy Vallee. s Douglas Myers: (1) appropriate license fees for Avnet' use of s
Document 237 4 Filed 06/19/2006

b.

c. d.
1806024.1/12444.027

Case 2:04-cv-00621-SRB

Page 4 of 6

1 2

e.
3 4 5

f. g.

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

Plaintiff' photos, and (2) whether Avnet' public relations use of s s Plaintiff' photos was intended to create goodwill toward Roy Vallee s and Avnet. Michael Norton: (1) his usual and customary fees for the use of photography by corporate clients, and (2) the value of Avnet' use of s Plaintiff' photos of Roy Vallee. s David Schmidt: (1) his usual and customary fees for the use of photography by corporate clients, and (2) the value of Avnet' use of s Plaintiff' photos of Roy Vallee. s Debra Weiss: (1) appropriate license fees for Avnet' use of s Plaintiff' photos, and (2) whether Avnet' public relations use of s s Plaintiff' photos was intended to create goodwill toward Roy Vallee s and Avnet.

8.

Preclusion of hearsay testimony.

Plaintiff identified Dan Delany in a Disclosure Statement as a witness expected to testify regarding conversations about Avnet and this lawsuit with Defendants' expert, John Trotto. Mr. Delany is not identified in Plaintiff' Witness List. s This hearsay

testimony should be precluded pursuant to Fed. R. Evid. 801 and 802. 9. Withdrawal of inaccurate admissions.

Defendants seek to withdraw two erroneous admissions of fact to accurately reflect the facts. This issue is fully briefed in: a. Defendants' Response to Plaintiff' Motion in Limine to Exclude s Assertions by Defendants Contrary to Prior Admissions (Docket #190); b. Defendants' Motion to Withdraw Admissions and to Enter Denials as to Request to Admit Nos. 15 and 43 of Avnet' Responses to s Plaintiff' Third Requests for Admissions (Docket #191); and s c. Defendants' Reply in Support of Motion to Withdraw Admissions (Docket #204). ... ... ...
1806024.1/12444.027

Case 2:04-cv-00621-SRB

Document 237 5 Filed 06/19/2006

Page 5 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

DATED this 19th day of June, 2006. FENNEMORE CRAIG, P.C.

By s/Jordan Green Jordan Green Lawrence Palles Attorneys for Defendants

CERTIFICATE OF SERVICE I hereby certify that on June 19, 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

1806024.1/12444.027

Case 2:04-cv-00621-SRB

Document 237 6 Filed 06/19/2006

Page 6 of 6