Free Statement - 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 DEFENDANTS' STATEMENT OF FACTS IN REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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Defendants set forth the following statement of facts in reply to Plaintiffs' Opposition to Defendants' Motion for Summary Judgment (hereinafter "DSOF2"). 1. Defendants' Response To Plaintiff's Dispute Of Paragraph 5 and 21 Of

Defendants' Statement Of Facts. Plaintiff's dispute that Defendant Jason Napier has a distinct and recognizable style with sleek, smooth, rounded lines and surfaces that are used to express the natural anatomy of wildlife animals. Plaintiffs further demand that the Declaration of Jerold Miles be stricken from the record. Defendants submitted the Declaration of Jerold Miles to establish that elements other than Plaintiff Kent Dyer's copyrighted work are attributable to Defendant Jason Napier's profits for his "Precious Cargo" sculptures. Defendants also present the Declarations of Peter Rittler and Richard Tapper (attached hereto as Exhibits 1 and 2) to support the same. As previously stated in Defendants' reply brief, Defendants will make

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

these Declarants available for deposition testimony at any time before trial to avoid any allegation of prejudice by Plaintiffs. Plaintiffs should have plenty of time to take deposition testimony of these Declarants, if desired, in that the Court has not yet ruled on any dispositive motions nor has the Court yet set trial for this case. 2. Defendants' Response to Plaintiffs' Dispute of Paragraphs 6 and 7 of

Defendants' Statement of Facts. Plaintiffs assert that Kent Dyer did not meet Jason Napier until 2001. While recognizing that this may be a disputed fact, albeit one that does not go to the issue of summary judgment on liability, Defendants attach hereto as Exhibit 3 information recently obtained from the Thunderbird Artists showing a list of the artists attending the Carefree Art Show and their booth locations from 1998 through 2001. In 1998, it should be noted that Plaintiff Kent Dyer and Defendant Jason Napier's booths were ten feet away from one another. As a result, it would seem highly unlikely that they did not meet at the March 1998 Art Show in Carefree. In the March 1999 Carefree Art Show, Plaintiff Kent Dyer and Defendant Jason Napier's booths were approximately 200 feet away from each other. In the March 2000 Carefree Art Show, Plaintiff Kent Dyer and Defendant Jason Napier's booths were approximately 100 feet away from one another, and in the March 2001 art show, Plaintiff Kent Dyer and Defendant Jason Napier's booths were approximately 100 feet away from one another. The number of artists attending the 1998, 1999, 2000 and 2001 March Carefree Art Shows were 161, 166, 163, and 161, respectively. 3. Response to Plaintiffs' Dispute to Paragraph 9 of Defendants'

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Statement of Facts. Plaintiffs dispute that Defendant Jason Napier used other reference materials to create the "Precious Cargo" sculpture. Defendants contend that in addition to Plaintiff's photograph, a number of reference materials were used to create the "Precious Cargo" sculpture. These reference materials are included as Exhibit 7 to Defendants' Motion for Summary Judgment. Furthermore, independent evidence of the use of these additional
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reference materials can be seen in color photographs attached hereto which represent NAPIER000142 through 000147 which were disclosed to Plaintiffs in Defendants' Second Supplemental Disclosure Statement. NAPIER000142 clearly shows the "Precious Cargo" sculpture being created in clay with a reference book open in the background. The reference book is directed to the anatomy and physiology of mountain lions and other cats and is included in Exhibit 7 of Defendants' Motion for Summary Judgment. Defendants object to the arguments contained in Paragraph 4 of Plaintiffs' Statement of Disputed and Material Facts, especially those which address striking similarity and copying in that they go beyond disputing a material statement of fact. 4. Defendants' Response to Plaintiffs' Dispute of Paragraph 11 of

Defendants' Statement of Facts. Plaintiffs dispute Paragraph 11 of Defendants' Statement of Facts because the photographs attached by Defendants as Exhibit 9 are of poor quality and do not depict the same angle or expression that exists in Plaintiff's copyrighted photograph. Defendants take the position that the photographs in Defendants' Exhibit 9 are clear, accurate and of good quality. However, Defendants encourage the Court to view the actual mini photo of Plaintiff Kent Dyer and the actual sculpture of Defendant Jason Napier at issue in this case. A life-sized version of the "Precious Cargo" sculpture is located in the Fountain Hills Community Center courtyard in Fountain Hills, Arizona and a maquette (smaller) version can be delivered to the Court directly by contacting defense counsel Laura Zeman at 602-382-6377. Defense counsel also has a mini photo of Plaintiff Kent Dyer's photograph entitled "Mother Mountain Lion with Baby in Mouth" for viewing. Plaintiffs' counsel should also have such a mini photo available for viewing. Defendants object to Exhibit 8 of Plaintiffs' Statement of Disputed and Material Facts in Opposition to Defendants' Motion for Summary Judgment in that Plaintiff Kent Dyer's mini photo is cropped, aligned and manipulated to compare it to a photograph of the life-sized version the "Precious Cargo" sculpture located outside of the Fountain Hills .....
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Community Center. This is not an accurate depiction of Plaintiff's mini photo which is at issue in this case. 5. Defendants' Response to Plaintiffs' Dispute of Paragraph 15 of

Defendants' Statement of Facts. Defendants object to Plaintiffs' dispute of Paragraph 15 of Defendants' Statement of Facts because it merely contains argument and no factual evidence which disputes that Plaintiff Kent Dyer himself identified several differences between his photograph entitled "Mother Mountain Lion with Baby in Mouth" and Defendant's "Precious Cargo" sculpture. 6. Defendants' Response to Plaintiffs' Dispute of Paragraph 16-18 of

Defendants' Statement of Facts. Paragraphs 16 through 18 of Defendants' Statement of Facts includes direct deposition testimony of Defendants' expert Jane Kinne. Plaintiffs allege that Ms. Kinne is not qualified to make the statements contained in her deposition. In addition, Plaintiffs' dispute contains numerous arguments which include statements made by Plaintiffs' expert witness Jeffrey Tritel and Plaintiffs' witness Leslie Bell. Defendants object to Plaintiffs' dispute of Paragraphs 16-18 of Defendants' Statement of Facts because they merely contain argument and no factual evidence which disputes that Ms. Kinne made the statements that she made in her deposition testimony. 7. Defendants' Response to Plaintiffs' Dispute of Paragraph 19 of

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Defendants' Statement of Facts. Defendants object to Plaintiffs' dispute of Paragraph 19 of Defendants' Statement of Facts in that it merely contains argument and statements by Mr. Tritel regarding intent and content of the communicative content of Defendant Jason Napier's sculpture which is not relevant to the law of copyright infringement. Furthermore, Plaintiffs offer no factual evidence that disputes that Mr. Tritel identified the several differences between Plaintiffs photograph and Defendant's sculpture in his deposition testimony. .....
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

8.

Defendants' Dispute That Plaintiffs' Material Facts Contained in

Paragraphs 11-15 of PSOF Preclude Defendants' Motion for Summary Judgment. Plaintiffs' Paragraphs 11-15 in its PSOF speak to Kent Dyer's original creation, original work, artistic vision, effort and work performed in obtaining his photograph, and his designation as an artist. None of these facts, even if disputed, would preclude Defendants' Motion for Summary Judgment on the issue of liability. Instead, the issue of liability is determined by identifying the copyrightable or protectable elements of Plaintiff Kent Dyer's photograph and determining whether Defendant Jason Napier copied those copyrightable or protectable elements in creating his "Precious Cargo" sculpture. DATED this 20th day of December, 2005. 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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CERTIFICATE OF SERVICE I hereby certify that on December 20, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System of 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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