Free Memorandum - District Court of Arizona - Arizona

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Laura Zeman (#014713) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6000 Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

KENT DYER and SUSAN DYER, husband and wife, Plaintiffs, vs. JASON NAPIER and DANIELLE NAPIER, husband and wife; NAPIER SCULPTURE GALLERY, INC., a Washington corporation, Defendants.

No. CV04-0408 PHX SMM MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTION TO STRIKE TESTIMONY OF JANE KINNE FROM DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ­ AND ­ MOTION TO DISQUALIFY JANE KINNE AS DEFENDANTS' EXPERT WITNESS

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Snell & Wilmer L.L.P.

Defendants Jason Napier, Danielle Napier and Napier Sculpture Gallery, Inc. ("Defendants"), by and through undersigned counsel, hereby submit their memorandum of points and authorities in support of their response in opposition to plaintiffs' motion to strike defendants' expert witness and expert witness testimony. RESPECTFULLY SUBMITTED this 26th day of January, 2006. SNELL & WILMER L.L.P.

By /s Laura J. Zeman Laura J. Zeman One Arizona Center 400 East Van Buren Street Phoenix, Arizona 85004-2202 Attorneys for Defendants

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This case involves allegations of copyright infringement relating to a wildlife photograph which includes issues relating to the similarities and dissimilarities between a wildlife photograph and a wildlife sculpture, art renderings and licensing of wildlife photographs, and the use of wildlife photographs as an art reference. Fed. R. Evid. 702 provides that if scientific, technical, or other specialized knowledge will assist a trier-offact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Fed. R. Evid. 702 (emphasis added). Defendants retained Ms. Jane Kinne as an expert witness in this case. Ms. Kinne possesses substantial knowledge and experience to qualify as an expert witness to opine on these issues. II. DEFENDANTS' EXPERT WITNESS JANE KINNE POSSESSES SPECIALIZED KNOWLEDGE THAT WILL ASSIST A TRIER-OF-FACT IN UNDERSTANDING THE EVIDENCE IN THE CASE AT HAND AND SHE THEREFORE QUALIFIES AS AN EXPERT WITNESS Plaintiffs argue that Defendants' expert witness Jane Kinne should be disqualified in this case because she does not have the formal education or training to opine on legal issues, the art of photography, or the art of sculpting. (See page 6 of Plaintiffs' Memorandum of Points and Authorities in Its Motion to Strike Ms. Kinne's testimony and to disqualify her as an expert witness). However, Defendants are using Ms. Kinne as an expert to opine on the issues of art rendering and licensing of wildlife photographs, the use of wildlife photographs as reference material, and the similarities and dissimilarities between a wildlife photograph and a wildlife sculpture. The Court has broad discretionary powers in determining whether or not the proposed expert is qualified by "knowledge, skill, experience, training, or education." Daubert v. Merrill Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th Cir. 1995), cert. denied, 516 U.S. 869, 133 L.Ed.2d 126, 116 Sup. Ct. 189 (1995). In so doing, the Court must decide if the proposed subject matter of the expert opinion properly concerns

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scientific, technical, or other specialized knowledge under Fed. R. Evid. 702 and whether that testimony is helpful to the trier-of-fact by determining whether the testimony rests on a reliable foundation and is relevant to the facts of the case. McKendall v. Crown Control Corp., 122 F.3d 803, 806 (9th Cir. 1997). Ms. Kinne has almost 60 years of experience relating to the business of photographs, images, art renderings, and licensing photography rights. (See Deposition Transcript of Jane S. Kinne attached hereto as Exhibit "A" at page 12, lines 20-25 and page 13, lines 1-10). She also possesses extensive knowledge and experience in these areas specifically as they relate to wildlife photography. (See Exhibit A, page 20, line 17 through page 22 and page 24, line 7 through page 27, line 23). Ms. Kinne has also been involved in numerous professional organizations relating to these issues including the Picture Agency Council of America (P.A.C.A.), the American Society of Picture Professionals (ASPP), the American Society of Media Photographers (ASMP), and the North American Nature Photography Association (NANPA). (See pages 2-3 of Ms. Kinne's expert report attached hereto as Exhibit B and Exhibit A, pages 34-35, 38-40, 4347, and page 55, line 13 through page 56, line 9). Furthermore, Ms. Kinne has functioned as an expert witness in over 500 cases pending before the American Arbitration Association and the state and federal courts concerning copyright issues, value of photographic images, and reproduction rights and fees. (See Exhibit B, page 5 and Exhibit A, pages 56-57). In fact, Ms. Kinne functioned as the Plaintiff's expert in Rogers v. Koons1, the case on which Plaintiffs in this case rely to prove their allegations of copyright infringement. (See Exhibit A, page 80, line 18 through page 81, line 18). In addition, despite Plaintiffs' contention in this case that Ms. Kinne has admitted under oath that various courts have rejected her expert testimony in the past and that she has had a great deal of trouble with the 2nd District Court of Appeals, those instances where the courts have disagreed with her expert opinion covered issues relating to the value of original photographs. (See Exhibit A, page 108, lines 8-16).
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960 F.2d 301 (2nd Cir. 1992).
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

It is clear from the above that Ms. Kinne's knowledge and experience of almost 60 years in the areas of wildlife photography, art rendering and licensing, and use of wildlife photography for reference qualify her as an expert with specialized knowledge who can assist a trier-of-fact in understanding the evidence at issue in this case. III. MS. KINNE WAS THE PLAINTIFF'S EXPERT IN A CASE ON WHICH PLAINTIFFS RELY TO PROVE THEIR COPYRIGHT INFRINGEMENT ALLEGATIONS AND THEIR MOTION TO STRIKE HER TESTIMONY AND DISQUALIFY HER AS AN EXPERT WITNESS IN THE CURRENT CASE SHOULD BE DENIED As previously stated, Ms. Kinne functioned as the Plaintiff's expert in Rogers v. Koons which Plaintiffs rely on in this case to prove their allegations of copyright infringement. (See Exhibit A, page 30, line 18 through page 31, line 18). In Rogers v. Koons2, Ms. Kinne was an expert for Plaintiff Art Rogers, a photographer whose work was found to be infringed by a sculpturist. Defendants have distinguished the Rogers v. Koons case from the case at hand in their Motion for Summary Judgment and Plaintiffs' counsel has deposed Ms. Kinne on her involvement and opinions in the Rogers v. Koons case. (See Exhibit A, pages 81-86, and 97-98). It is clear that the Rogers v. Koons case involved some facts similar to the case at hand with the exception of the subject matter of the photograph and the actions of the Defendant Jeff Koons. Therefore, Plaintiffs' contention that Ms. Kinne does not qualify as an expert witness in the case at hand despite her qualification as an expert witness in the Rogers v. Koons case is without merit. Plaintiffs should not be allowed to strike an expert witness who also functioned as an expert witness in the case on which they rely to prove their causes of action. If Ms. Kinne does not qualify as an expert witness in the case at hand, then Ms. Kinne should not have qualified as an expert in the Rogers v. Koons case, the case on which Plaintiffs rely. Logical reasoning follows that if Ms. Kinne were not qualified as an expert witness in Rogers v. Koons, the Rogers v. Koons case may have been determined differently and, as a result, Plaintiffs should not be allowed to rely on the Koons case to prove their allegations of copyright infringement. In short, Plaintiffs cannot have it both
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960 F.2d 301 (2nd Cir. 1992).
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ways ­ if they want to rely on Rogers v. Koons to prove their case, then Ms. Kinne, who qualified as an expert in that case, should also qualify as an expert in this case. Plaintiffs had ample opportunity to depose Ms. Kinne on her differences of opinions with respect to the Koons case and this case. Ms. Kinne qualifies as an expert witness in this case just as she did in the Rogers v. Koons case, and disqualifying her as an expert witness in this case would result in severe prejudice to the Defendants. IV. CONCLUSION Based on the foregoing points and authorities, Defendants respectfully request that the Court deny Plaintiffs' Motion to Strike the testimony of Jane Kinne from Defendants' Motion for Summary Judgment, in particular paragraphs 16, 17, and 18 from Defendants' Statement of Facts filed on October 7, 2005, and further deny Plaintiffs' Motion to Disqualify Jane Kinne as Defendants' expert witness RESPECTFULLY SUBMITTED this 26th day of January, 2006. SNELL & WILMER L.L.P.

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Snell & Wilmer L.L.P.

By /s Laura J. Zeman Laura J. Zeman One Arizona Center 400 East Van Buren Street Phoenix, Arizona 85004-2202 Attorneys for Defendants

CERTIFICATE OF SERVICE I hereby certify that on January 26, 2006, 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: Christopher D. Lonn, Esq. [email protected] Michelle Justine Perkins [email protected] s/Laura Zeman
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