Free Motion to Strike - District Court of Arizona - Arizona

EXHIBIT "C" j
Case 2:O4—cv—OO4(I8-:SI\/II\/I Document 73-4 Filed O1/O3/2006 Page1 0f4 _ I

g ,i,. - in I"? e 9F“64E2 - ,:*H 1
I , ` _ ? » JNE S. KINNE . AUGUST 2, {3 _ I S
1 · IN THE UNITED STATES DISTRICT COURT ` M
1 LE 2 FOR TEE DISTRICT OF ARIZONA _ Y -
I 3_ -2 .........._________________................... X . - ` -
if 4 KENT A. DYER and SUSAN DYER, . U .i A
_ husband and wife, . ` G S
5 - Plaintiffs ‘ I ·
l 6 rs _
- .1 7 JASON NAPIER and DANIELLE NAPIER.`
husband and wife; NAPIER SCULPTURE
. B . GALLERY, INC., a Washington corporation, ~· ‘_ .
09 0Defendants. 2 a .·
_ 10 _ ————--—- — ———————-——— —— ——————— 5 --—————-———————--— X
S. 11 _ VIDEO—CONFERENCE7 '_ U
· 12 DEPOSITION
J 13 · a OF · nr
;.‘Q,-ii 14 __ - JANE s . KINNE 1 T
_ 15 ` l ·STAMFORD, CONNECTICUT 1 l
16 - e AUGUST 2,. 2005 · `
17 _ .7 `1:00 P.M. ‘ U 1
19 , I V
20 ATKINSON—BAKER, INC. I _ ‘ . l
` COURT REPORTERS
.· 21 500 North_Brand Boulevard; Third Floor
_. Glendale, California 91203—4725 ‘
22 (800) 28B—3376 `A —
l-23 REPORTED BY: Nancy Anne.Flynn, RPR ` _ .
`FILE NO.:, QF064E2 . _
· 24 . " . I .
. 25 · I U l I S l
R G U ‘ - U EXHIBIT "C" _ I Pégé 1
·.Atkir1son-B£me l2nGk4—cv—OO408—SIVIIVI Document 73-4‘ Filed O1/O3/2006 n Page 2 @@9-233.3376 ·

. A _. . 9F064E2 . Q · Q ‘ {
JAI A KINNE . AUGUST 2, 2005 r_ Al * . .
1 there are other different ·- if I have a license 1 Q Other than that, you wouldn't
2 VBFSUSVB right to do an art rendering, are those 2 characterize yourself as a photographer at any time? J A r -.r__ I
3 different rights in your mind or are they tl1e same _ 3 A No, because a photographers agent r I
4 thing? Q ` 4 leams very early on that they shouldn‘t be competing _
5 A They couldbe the same, and I would 5 with theirdients. `
6 say in the industry they almost universally are. . 6 Q That's a good idea. I also presume
7 Q Okay, that's fair. I just wanted to r ` 7 that you are nota sculpture of any kind?
8 make sure I understood the nomenclature. 8 Q A Heavens, no. A
9 r You have a degree in history from tl1e 9 Q I have trouble with stick men so I A `
10 College of William and Mary? 10 definitely wouldn't be a sculptor either. In terms
11 A Yes, I do. . 11 of looking at your career history, you wer·e an audio-
12 Q I‘m kind of jealous because I wanted 12 visual librarian in Williamsburg for about three -
13 to be a history major but I figured what would I do 13 years? I -
, 14 with it really, I would have to be a teacher. So 14 A Actually it was about two.
15 what was your focus, was there any particular focus 15 Q Two years, okay?
16 you had? Q 16 A Yes. .
17 A Early American History where Iwas 17 Q Looks like from 1950 to 1957 you wer·e _
18 sitting right in the middle of it. I . 18 the head of the photo and film department for the
19 Q Did you have any minors of study at 19 National Audubon Society?
20 William and Mary? . Q 20 A That is correct.
21 A No, we did not operate that way in 21 Q2 What were your responsibilities in
22 those days. 22 that particular position? . `
23 Q Okay- Then it looks like you obtained 23 A Audubon had acquired over the years a
24 a master‘s in audiovisual education in 1950? 24 large file of photography that belonged to some very
25 A Thats correct. Q Q 25 fine photographers, some scientists, some staff ·
Page Ql S Q Page 20
1 Q What precisely does that entail, this 1 members. It depicted pretty much North American - _ .... ·'
2 audio visual education? Q 2 wildlife, habitats, habitat destruction.
3 A Well, in 1950 it was kind of an I ` 3 The president of National Audubon
4 unusualidea. . Today‘s students would tell you it's 4 became concerned that we were moving into an era
5 as basic as their textbook. Because it is a total 5 where those photographs would be needed to make
_ 6 program in how to arrange a curriculum to use sound ` 6 conservation and ecological points with the public,
7 and visuals to do your teaching. 7 and he set me to work to tum that lile into a viable
8 Q Were you planning on going into 8 agency, charging reproduction ratesand sharing them
9 teaching at that time? . 9 with the photographers, for he feared that unless `
10 A No, I was not. I was headed-right for. 10 they began to eam some money, we would not have
11 where I ended up. r 11 pictures in the future.
12 Q ‘ From looking at your professional . 12 -So my job was to build a going photo
13 resumeoverall, I,haven't gotten the impression that A 13 agency. . _,
14 yourare an actual photographer; is that correct or _ 14 Q From 1958 to 1986, that's a pretty
15 incurred? 15 good chunk Of_tlI'l'lE, you wer·e the head of the natural
16 A That's an be a absolutely accurate 16 A-history department, and I guess secretary and
17 impression. 17 president of Photo Researchers, Inc.? r
18 Q So you don't take photographs as a 18 A That is correct. Photo Researchers,
19 professional and sell thein? 19 Inc. was a very large editorial for the main ·
20 A I‘ve only sold one photograph in my 20 photographic collection. I went there from Audubon,
21 entire life. - ` _ 21 and shortly thereafter Audubon asked that photo `
22 Q What wasfhat? Q . · 22 researchers bake the Audubon collection that I had _
23 A Actually it was a photograph of an Q 23 built and -manage that under contract a|ong_wid1 all
24 orchiclthat I took purely for my own pleasure and it 24 the representation we were doing forthe conuibutors
25 happened to lit a particular need of a movie company. 25 to Photo Researchers. Many of those were very famous
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Atkinson-Bakcrclreez:04-Cv-00408-slvllvl oocumanr 73-4 Filed 01/03/2006 Paga8@%F2¢88—3376 2 j

Z . 1 . · . 9F064E2 · Q
_ = A ,iNES.KINNE‘ AUGUST2,2-__t..) ` `
1- copyrightability of images? _ . ` 1 guess you are discussing copyright and trademark
{Eg 2 A Nancy Wolff provides the entire . Q 2 issues? ‘ i
`· .. ` 3 membership of PACA with a biweekly legal update. I 3 A Yes, licensing terms, whereyou needed
_ 4 am a recipient of that, and as I say, the purpose of 4 additional permissions besides the copyright per se; ·
5 the review is to be sure that everybody has acted on 5 museums in particular are an issue there. ·
‘ 6 what she has said. _ · _ 6 Q Would any of these discussions_ pertain ·
` 7 Q. So with regard to your work with PACA 7 to the issues that we have in this lawsuit, that
8 you don't really read the cases, you just read the 8 relate to copyright matters? . A
9 - synopsis that Nancy Wolff would provide? 9 A _ I'm not sure. I've certainly? I i
10 - A For the most part the synopsis will 10 discussed issues concerning wildlife and - `
11 `do. Nancy is always willing to provide the full ` 11 protectability and so on, but whether it was for I
12 opinion if it ls a written opinion, if we request it.- 12 ASPP, I-don't believe so. Ithinkthose discussions
13 Q I guess since you're not a Iawyeryou ·13 come mainly either at PACA or at NAMPA, which you
- 14 don't prepare the synopsis, right? ` 14 haven't gotten to yet.,
. 15 A Absolutely not. t ` 15 Q Well, let's go back to PACA for a ` A
16 Q For use by other? . 16 minute. Do you have any writingsthat you have
‘ 17 A I do not prepare lt. I I 17 authored or reports of speeches you've given that
18 ] Q I seethat you are also a member of 18 would relate to the protection of wildlife
‘ 19 the American society of Picture Professionals? 19 photography or the copyrightability of photos of
20 ` A That is correct. I .20 wildlife, anything like that at all that would be in
21 _ Q And you've been the chairman -of that 21 your possession? ‘
22 committee for the last 15 years; is that right? 22 A PACA does not use recordings of its
23 · A .A That's right. 23 various meetings or sessions and anything that is
24 Q g Is your work any different in 24 written is written _afterward as a summary of the
25 connection with the American Society of Picture · 25 whole meeting. So Iam very certain that there is
I Page 38 Page 40
`‘‘‘· I “` 1 Professionals than il: is with PACA? 1 nothing in their archives or mine that would relate -
_2 _A It's a slight bit different and 2 to my having discussed anything like that in
_ 3 includes everything that I do with PACA, but there 3 particular.
4 are a good number of members of ASPP who.are either 4 Q I guess th’e reason I keepasking that
5 museum connected or with libraries that are not being 5 question is Laura and I are still used to going to r
6 operated as agencies, and therefor they have some ` 6 seminars where you show up and, maybe because it's a
7 additional concerns. __ 7 Bar Association regulation, you show up and you are ·
8 Q What is the function or the purpose of 8 handed a packet of materials for everybody tl1at
9 the American Society of Picture Professionals? 9 speaks, pretty much. ” , .
10 A It is a group trade organization that 10 So have you ever done that type of a
_ 11 cuts across, for lack of a better phrase, all of the - 11 thing where you've spoken to a group of, doesn-'t
12 disciplines of the photographic community. We have 12 really matter who it is, but where you have actually I
. _ 13 buyers which other organizations dont; we have 13 ‘ authored some type of writing to enhance your `
. 14 photographers; we have agents; we have what are known 14 speaking? Or do you supplement your speech?
_ 15 as picture researchers; and we have true archivists. ` - 15 A NAMPA does require handoutslfor any,
` 16 Q . Is any part of the mission of the 16 as we call them, breal<—out sessions. I have done a
17. American Society of Picture Professionals designed to - 17 number of those on business practice and copyright.
18 advocate or protect the rights of photographers? 18 I can get from the NAMPA headquarters whatever ‘ _
_ 19 A Certainly for the photographer 2 _ 19 materials there were and 1 do believe that I have _ p
20 element, we advocate that they be copyright aware; 20 some audio tapeiof those presentations.
21 that they use are recommended terms and conditio_ns on A 21 I cannotoff the top of my head recall ‘_
22 their paperwon<,iwhich in turn protects the imagery. . 22 _ whether we ever got specifically in those sessions A
23 Q I see that on your resume that you've ` 23 into the question of what is copyrightable as far as _
24 been a speaker, it looks like 1990 through 2000 on 24 wildlife goes. ` i
_ . __ 25 various panels for picture rights and permissions, I 25 Q Q would you be able to look and see from
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