Free Motion for Miscellaneous Relief - 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 21 22 23 24 25 26 27 28

MESCHKOW & GRESHAM, P.L.C.
Jordan M. Meschkow (AZ Bar No. 007454) Lowell W. Gresham (AZ Bar No. 009702) 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818
(602) 274-6996 (602) 274-6970 (facsimile) Email: [email protected] Attorneys for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, doing business as Coogan Photographic, Plaintiff, v. AVNET, INC., Roy Vallee and Cindy Vallee, husband and wife, and Al Maag and Michaelle Maag, husband and wife, Defendants. This Court's October 24, 2005 Order (the "Order") held that the Defendants committed copyright infringement willfully, but declined finding Defendant Al Maag jointly and severally liable for any damages to be awarded for such holding, after finding that "Maag possessed at all relevant times the right and the power to supervise the infringing activity." See Order, page 13, lines 6-7. Yet, this holding was based on discovery completed by May 27, 2005 (when Plaintiff filed his Motion for Summary Judgment), when, it was "less clear" "whether Maag has a financial interest in the copyright infringement", and because "Plaintiff has offered no evidence concerning Maag's pay structure or stock ownership" it could not "...be said as a matter of law that Maag had a financial interest in encouraging the infringement." See Order, page 13, lines 6-7. Case No.: CV-04-0621 PHX SRB PLAINTIFF'S MOTION FOR HOLDING ALLEN MAAG JOINTLY AND SEVERALLY LIABLE AS TO ANY DAMAGES (Assigned to The Hon. Susan R. Bolton)

Case 2:04-cv-00621-SRB 8050-0131-120

Document 120 1

Filed 12/09/2005

Page 1 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Yet, the Motion for Summary Judgment was filed in May 2005, after months of discovery disputes letters between counsel concerning Defendants' Responses to Plaintiff's September 2004 first interrogatories, request for documents, and request for admissions 1 . Plaintiff's original basis for the Motion for Summary Judgment on the issue of infringement and its willfulness was based on documents in Avnet's March 25, 2005 Updated Supplemental Disclosure Statement (particularly Mr. Maag's email on how he "totally forgot" about the 1-year license, to then Upside Magazine editor, Jerry Borrell). This Court found the res gestae of willful infringement because "even assuming that Defendants' mistaken belief as to the terms of the license was held in good faith, it was not reasonable." See Order, page 9, lines 9-10. In May 2005, however, discovery on infringement liability and willfulness, however, had barely been completed, and discovery on damages and on joint and several liability as to those damages remained incomplete. After the holding of infringement and willfulness, Plaintiff received Defendant Allen Maag's Response to Plaintiff's Second Request for Admissions to Defendant Allen Maag (attached as Exhibit 1). With this as its main basis, Plaintiff Dan Coogan ("Plaintiff" or "Coogan") hereby moves this Court to hold Defendant Maag jointly and severally liable for any damages to be determined for the willful copyright infringement finding in this case. Doing so now will enable the Court and the parties to establish damages with better accuracy between now and trial. Plaintiff asks the Court to find Defendant Maag jointly and severally liable for damages, now, under the manifest of 17 United States Code §504, which state in part: ...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). (Emphasis added.) While subsection (b) discusses actual damages and any profits of would be each infringer, it is subsection (c) that makes clear such damages are to be shared jointly and severally: ...the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of
1

Which, the Court may yet see again, as counsel agreed during a deposition on Wednesday December 7, 2005 to have a "meet and confer" on this SOON.
Document 120 2 Filed 12/09/2005 Page 2 of 5

Case 2:04-cv-00621-SRB 8050-0131-120

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

statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of... (Emphasis added.) As stated in the Order, Defendant Maag "possessed at all relevant times the right and the power to supervise the infringing activity." (See Order, page 13, lines 6-15, including basis.) Maag also "permitted another Avnet employee to transfer any or all of PLAINTIFF'S PHOTOGRAPHS to a third-party"2 and "knew any or all of PLAINTIFF'S PHOTOGRAPHS would be made available by Avnet for third-party download" 3 because he was the one who "approved of any or all of PLAINTIFF'S PHOTOGRAPHS being made available by Avnet for third-party download" 4 . He also authorized use of any or all of PLAINTIFF'S PHOTOGRAPHS in the 2002 and 2003 Avnet Annual Reports 5 , selected any or all of PLAINTIFF'S PHOTOGRAPHS in the 2002 and 2003 Avnet Annual Reports 6 , and as the one who "is responsible for brand management, which includes global public relations, investor relations marketing, community relations and corporate communications" of Avnet 7 , oversaw Avnet make use of PLAINTIFF'S PHOTOGRAPHS "for investor relations" 8 , for community relations" 9 , "for corporate communications" 10 , and "for public relations"11 . Many other admissions support this further. 12 As this Court aptly noted: "The test for finding a corporate officer jointly and severally liable with his corporation for copyright infringement is whether the officer `has the right and ability to supervise the infringing activity and also has a direct financial See Admission No. 11. See Admission No. 13. 4 See Admission No. 14. 5 See Admission Nos. 17 and 22. 6 See Admission Nos. 27 and 31. 7 See Biography of Allen Maag on Avnet's website at http://avnet.com/sta/home/0,2007,RID%253D0%2526CID%253D9793%2526CCD%253D USA%2526SID%253D9358%2526DID%253DDF3%2526LID%253D9858%2526BID%2 53DDF3%2526CTP%253DSTA,00.html, attached hereto as Exhibit 2, and answers to Admission Nos. 54, 67 and 68, 74 and 75, 81 and 82. 8 See Admission No. 62 and 63. 9 See Admission No. 69. 10 See Admission No. 76. 11 See Admission No. 83. 12 See Admission Nos. 61, and 70 to 73, 74, 75, and 77 to 80, 81, 82, and 83 to 87.
3

21 22 23 24 25 26 27 28

Case 2:04-cv-00621-SRB 8050-0131-120

Document 120 3

Filed 12/09/2005

Page 3 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

interest in such activities.'" Chi-Boy Music v. Towne Tavern, Inc., 779 F. Supp. 537, 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) quoting Chi-Boy Music, 779 F. Supp. at 530). See Comm. for Idaho's High Desert, Inc. v. Yost, 92 F.3d 814, 823-24 (9th Cir. 1996) (noting that a corporate officer or director is, in general, personally liable for all torts which he authorizes or directs or in which he participates, notwithstanding that he acted as an agent of the corporation and not on his own behalf)." (See Order, page 12-13). In Exhibit 1, Mr. Maag admits stock ownership in Defendant Avnet, Inc. from April 2001 to October 2005 13 . This answer not only applies as an admission here 14 , and to stock ownership during that entire period, it follows a complete set of admissions to stock ownership "on 27 April 2001"15 , "on 27 October 2002"16 , "on 27 October 2003" 17 , "on 27 October 2004"18 , and "as of 27 October 2005" 19 , and Mr. Maag then admits that he "received Avnet stock-options any time between April 2001 through October 2005", he "participated in an Avnet equity compensation plan any time between April 2001 through October 2005", and "part of" his "income is related to Avnet's profit in the fixed period" of "any time between April 2001 to October 2005" 20 . Considering all of this, his income tied to Avnet's profits, the stock ownership, the stock-options, and the compensation plans, and with much of the infringing activity tied to his job duties, Defendant Maag had a strong, direct financial interest in encouraging the infringement. With discovery completed by May 2005, the Court concluded that summary judgment on Mr. Maag's liability as to damages was inappropriate because there was "no evidence concerning Maag's pay structure or stock ownership", and it therefore could not be said "as a matter of law that Maag had a financial interest in encouraging the infringement." Discovery now has borne the latter issue out and this Defendant, being the Chief Communications Officer of Avnet, Inc. since September 1998, a corporate officer of
13

See answer to Admission No. 6 of "Objection. Asked and answered." Admitted in full, if not denied. See Admission No. 5. See Admission No. 4. See Admission No. 3. See Admission No. 2 See Admission No. 1. 20 See Admission Nos. 7-10, in reverse.
14 15 16 17 18 19

Case 2:04-cv-00621-SRB 8050-0131-120

Document 120 4

Filed 12/09/2005

Page 4 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Avnet, Inc. since 1999, and a member of Avnet's Executive Board, had such direct financial interest in his work activities (Avnet used the copyrighted works for each such work activity described in Mr. Maag's bio on the Avnet website) 21 . Combined with the earlier findings, therefore, it is now appropriate for a holding of Defendant Maag as jointly and severally liable for any damages awarded for the infringement and willfulness holding in the October 24, 2005 Order. Moreover, even while damage evidence is still awaiting discovery answers served, it is appropriate to hold this Defendant so liable ­ this individual liability now extends to damages to be awarded.

RESPECTFULLY SUBMITTED this 9th day of December, 2005. By: s/Jordan M. Meschkow Jordan M. Meschkow Lowell W. Gresham MESCHKOW & GRESHAM, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818

CERTIFICATE OF SERVICE I hereby certify that on December 9, 2005 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jordan Greene and Charles Houston FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants s/Jordan M. Meschkow
21

28

See the Admission Nos. 61-63, 67-73, 74-80, and 81-87, and Exhibit 2.
Document 120 5 Filed 12/09/2005 Page 5 of 5

Case 2:04-cv-00621-SRB 8050-0131-120