Free Reply to Response to Motion - 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 REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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I. DEFENDANTS' ARE ENTITLED TO SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY Although Defendants set out several facts which they allege preclude summary judgment on the issue of liability, those facts are either 1) not at issue with respect to determining liability for copyright infringement and/or 2) contain arguments which attempt to apply the legal standard for copyright infringement to the facts. Plaintiffs contend that any reasonable person can see the striking similarity between Plaintiff's photograph and Defendant's sculpture. However, Defendants' application of the striking similarity standard for copyright infringement is incorrect in that one must first determine the copyrightable or protectable elements of a work and secondly determine whether or not those copyrighted or protectable element are strikingly similar with respect to the two works. .....
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A.

There Are No Disputed Facts Which Preclude Summary Judgment On The Issue Of Liability

In order to succeed on their copyright infringement claim, Plaintiffs must prove ownership of a valid copyright and that Defendants copied protected elements of Plaintiffs' work. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000) cert. denied, 531 U.S. 1126, 121 S. Ct. 881, 148 L. Ed. 790 (2000); Feist Publications, Inc. v. Rural Telephone Service Company, 499 U.S. 340, 361, 111 Supreme Court 1282 (1991); Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir.) cert. denied, 484 U.S. 954, 108 Supreme Court 346 (1987). In their opposition, Plaintiffs allege that a number of facts preclude summary judgment. First, Plaintiffs state that a dispute exists as to when Kent Dyer and Jason Napier first met. Defendant Jason Napier does not contest that he had access to Plaintiff Kent Dyer's photograph and the date on which Kent Dyer and Jason Napier first met is not relevant to the issue of liability. (See DSOF2 ¶2). Plaintiffs also state that they dispute that Jason Napier has a distinctive style and that the declaration of Jerold Miles, which refers to Jason Napier's distinctive style, must be stricken from the record. Jerold Miles is an individual who purchased a life-sized version of Defendant Jason Napier's sculpture. Mr. Miles stated that he purchased Jason Napier's sculpture as a result of Mr. Napier's unique and recognizable style as a sculptor. Jason Napier's style as a sculptor leads to the issue of damages, not liability. Plaintiffs further state that they are prejudiced because they have not had the opportunity to depose and test Mr. Jerold Miles' ability to recognize Mr. Napier's style or toexamine Mr. Miles as to precisely why he purchased the first life-sized version of Defendants' sculpture. Although it is Defendants' position that Plaintiffs have not been prejudiced by the Declaration of Mr. Miles, Defendants are willing to make Mr. Miles available for a telephonic deposition prior to trial. There should be ample time to do so in that dispositive motions have not yet been decided by the Court in this case and trial has not yet been set. On this same issue of Jason Napier's distinctive style, Defendants are also submitting the Declarations of Richard Tapper and
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Peter Rittler, both of whom also purchased life-sized versions of Jason Napier's sculpture (see DSOF2 at ¶1). These Declarants are also being offered for telephonic deposition well in advance of trial to eliminate any allegations of prejudice by Plaintiffs. Plaintiffs also dispute Defendant Jason Napier's use of reference materials and specifically state that Defendants have presented no independent proof that reference materials were used to create the image depicted in Defendant's sculpture. Although a determination can be made on the issue of liability without actual agreement as to Defendant Jason Napier's use of other reference materials, Defendants have indeed presented independent proof that reference materials were used to create the "Precious Cargo" sculpture. (See DSOF2 at ¶3). In alleging facts that preclude summary judgment, Plaintiffs also state that the photographs of "Precious Cargo" produced by Defendants are of poor quality and not representative of Plaintiffs' photograph. Plaintiffs further state that the Court should review Exhibit 8 of Plaintiffs' Statement of Facts for a better comparison of the photograph to the sculpture. Although Defendants do not view this as a disputed issue of fact, Defendants state for the record that Plaintiff's photograph produced as Exhibit 8 in Defendants' Statement of Facts Supporting Defendants' Motion for Summary Judgment is an accurate and clear color copy of what Plaintiff Kent Dyer refers to as a "mini" of his "Mother Mountain Lion with Baby in Mouth" photograph. Further, Exhibit 9 of Defendants' Statement of Facts Supporting Defendants' Motion for Summary Judgment shows clear and accurate photographs of Defendant Jason Napier's "Precious Cargo" sculpture, both maquette (small) size versions and life-sized versions taken from different angles. In constrast, Exibit 8 of PSOF shows a copy of Plaintiff Kent Dyer's "Mother Mountain Lion with Baby in Mouth" photograph shown cropped and aligned above a photograph of Defendant Jason Napier's life-sized version of his "Precious Cargo" sculpture located outside of the Fountain Hills Community Center. Plaintiffs' Exhibit 8 has been manipulated to support their claim and the Court is encouraged to view the unaltered versions of Plaintiff's "Mother Mountain Lion with Baby in Mouth" photograph and Defendant's "Precious Cargo" sculpture.
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As previously stated in
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paragraph 9 of Defendants' Statement of Facts Supporting its Motion for Summary Judgment, the life-sized version of Defendant Jason Napier's "Precious Cargo" sculpture can be viewed at Fountain Hills Community Center courtyard in Fountain Hills, Arizona and the maquette (smaller) version can be easily delivered to the Court at any time by calling defense counsel Laura Zeman at 602-382-6377. In alleging facts precluding summary judgment, Plaintiffs contend that Jane Kinne is not qualified to serve as an expert. Plaintiffs' contention should not preclude summary judgment. Jane Kinne was identified as Defendants' expert in February 2005. Ms. Kinne's deposition was taken in early August 2005. Plaintiffs have had plenty of time to file a motion to disqualify Ms. Kinne as an expert witness. Moreover, in that regard, Plaintiffs' expert Jeffrey Tritel could just as easily be challenged as unqualified in that he is not a lawyer, knows nothing about copyright law, and testified that he is acting in a capacity as an expert on creativity and originality and specifically whether something constitutes "an original idea". (See Tritel Deposition, p. 32). Plaintiffs' expert witness Mr. Jeffrey Tritel is merely a sculptor and not even a wildlife sculptor. In fact, Mr. Tritel stated in his deposition testimony that "there is virtually no difference" between the sculpture and Plaintiff's photograph because "both express a particular idea." (PSOF at ¶6). It is quite clear from copyright law that it is the expression that is protected, not the idea. In further arguing that facts exist which preclude summary judgment, Plaintiffs state that Plaintiff's photograph and Defendant's sculpture are "substantially similar" despite minor differences. This is a legal argument applying the facts of the case to the legal standard for copyright infringement liability and is not a disputed fact which should preclude summary judgment. Plaintiffs also argue that Defendants' "updated spreadsheet" is inaccurate and contains errors. Defendants' updated spreadsheet which contains cost and profit numbers is not a fact which relates to the issue of liability. Finally, Plaintiffs, in citing additional facts which preclude summary judgment, state that Plaintiff is an "artist" and that his
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work is an original creation. Defendants have acknowledged that Plaintiff's photograph is copyrighted. Plaintiffs alleged disputed facts regarding Plaintiff as an artist and his work as an original creation are not relevant to the issue of liability. The Court is the trier-of-fact in this case. Furthermore, the Court has before it the pleadings, depositions, answers to interrogatories, admissions, and any affidavits and declarations which relate to the issue of liability. Plaintiffs have failed to set forth any disputed fact which bears on the issue of copyright infringement liability. Accordingly, the Court is in a position to determine liability on Defendants' motion for summary judgment. B. The Scope of Copyright Protection for Plaintiff's Wildlife Photograph is Narrow and Therefore Protects Only Against Virtually Identical Copying, Not Substantial Similarity

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In determining liability, Plaintiffs focus on the "substantial similarity" test and further state that a lower standard of proof of substantial similarity is required where a high degree of access is shown. However, copyright protection extends only to those components of the work that are original to the creator. Life Publications, Inc. v. Royal Telephone Services Company, 111 S. Ct. 1282, 1289, 113 L. Ed.2d 358, 18 U.S.P.Q.2d (BNA) (1991), and it is those protectable elements which must be compared in determining substantial similarity. Plaintiffs contend that Plaintiff Kent Dyer went to extraordinary lengths and effort in order to create the "Mother Mountain Lion with Baby in Mouth" photograph. More specifically, they state that Mr. Dyer traveled to Montana and hired an animal trainer to use captive mountain lions and their kittens in his photograph. They also state that Kent Dyer spent days scouting the best location, lighting, and applicable angles and carefully selecting his film and camera to get his desired expression of the mountain lions. However, as previously stated in Plaintiffs' Motion for Summary Judgment, the scope of copyright protection for realistic depictions of live animals is narrow. Kamar Int'l., Inc. v. Russ Berrie and Company, 657 F.2d 1059, 1061 (9th Cir. 1981); Herbert Rosenthal
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Jewelry Corp. v. Kalpakian, 446 F.2d 738, 741 (9th Cir. 1971). Moreover, in Satava v. Lowry, the Court determined that one could not prevent others from copying elements of expression that nature displays for all observers. 323 F.3d 805, 812 (9th Cir. 2003). Although the mountain lions used in Defendant Kent Dyer's photograph were raised and maintained in a game farm environment, the pose that the mother mountain lion took when holding a baby mountain lion in its mouth and jumping from a rock are natural elements of expression carried out by the mother mountain lion and baby mountain lion. The pose, attitude, gesture, muscle structure, facial expression, coat and texture of the mother mountain lion and its baby are actual elements that the mother mountain lion and baby mountain lion possess and exhibit in nature. Plaintiff Kent Dyer did not vary these elements of the mother mountain lion and baby mountain lion. Moreover, although Plaintiffs allege that the mother mountain lion and baby mountain lion were manipulated to create the pose taken in Plaintiff Kent Dyer's photograph, the pose, attitude, and gesture that the mother mountain lion and baby mountain lion exhibited in response to these manipulations was natural and distinctive and was not originated by Plaintiff Kent Dyer. There are, however, many protectable elements in Plaintiff Kent Dyer's photograph which did result from his original contribution. These include choice of lighting and shading, the choice of background and surroundings that Mr. Dyer elected to put in the photograph, timing, the angle at which the photograph was taken, the framing, and the selection of film and camera used to take the photograph. Nevertheless, these protectable elements of Plaintiff Kent Dyer's photograph were not copied by Defendant Jason Napier or incorporated into his sculpture. In addition, where a work possesses only a narrow range of protectable expression, the copyright for the work protects only against virtually identical copying. Satava, 323 F.3d at 812; Apple Computer Inc. v. Microsoft Corp., 35 F.3d 1435, 1439 (9th Cir. 1994). When applying the virtual identity test, the elements of a work are dissected to separate the unprotected elements and compare the similarities of the
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protected elements. Berkla v. Corelle Corp., 66 F. Supp. 2d 1129, 1143 (Eastern Dist. Calif. 1999). Infringement is found only if the Defendant has virtually identically copied the Plaintiff's expressive work. Even if the natural, instinctive pose of the mother mountain lion with the baby in its mouth perched on a rock and about to jump were protectable expression of Plaintiff Kent Dyer, the record is repleat with dissimilarities in the pose of the mother mountain lion and baby mountain lion when comparing them with Defendant Jason Napier's sculpture. Dissimilarities in both the protectable elements and the unprotectable elements dictate that a trier-of-fact could not find substantial similarity, let alone virtual identity, between Plaintiff Kent Dyer's photograph and Defendant Jason Napier's sculpture. (See Appendix A attached to Defendants' Motion for Summary Judgment and the deposition testimony of Defendants' expert witness, Plaintiffs expert witness and Plaintiff Kent Dyer himself) (SOF at ¶¶15-19). C. Production Notes Aside, the Material Facts in Rogers v. Koons and This Case Remain Different and Distinguishable

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Plaintiffs allege that the only material fact that is different in Rogers versus this case is that Mr. Koons had "production notes" that directed his artisans to copy Mr. Rogers' photograph. This is clearly not the case. Unlike in Rogers v. Koons, Plaintiff Kent Dyer's photograph includes subjects that cannot be posed in place in the same way that the people and puppies could be posed in place in Rogers v. Koons. In addition, Koons copied all of the protectable elements in Rogers' photograph even though he made some additions to what was present in Rogers' photograph. In particular, the court stated that copyrightable elements of Rogers' photograph included the placement of the subjects, the particularity of the subjects, and the expressions of the subjects. Unlike the Rogers case, Defendant Jason Napier did not copy the placement of the subject. The mother mountain lion in Plaintiff's photograph is in the outdoors perched on a jagged rock outcropping with a scenic backdrop having trees in the foreground, trees in the background, and mountains in the background.
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Napier's mountain lion sculpture is placed on a stylized, sleek, smooth surfaced, unnatural looking rock with nothing in the foreground, background, or on the sides of the sculpture. Defendant Jason Napier did not copy the particular lighting used in Plaintiff Kent Dyer's photograph. Plaintiff Kent Dyer's photograph was taken at a particular time of day with the light reflecting on various objects included in the photograph such as the mother mountain lion, the mountains, the trees, the rock, and the sky. Meanwhile, Defendant Jason Napier's mother mountain lion was done in a patina which reflects the light differently depending upon the hour, day, and angle at which the sculpture is viewed. Finally, Defendant Jason Napier did not copy the expression of the subjects. Plaintiff Kent Dyer's mother mountain lion with a baby in its mouth is exhibiting a natural pose struck by the mountain lion while carrying its cub despite Plaintiff Kent Dyer's attempted manipulation of the mother mountain lion. Meanwhile, Jason Napier's mother mountain lion is perched on a stylized rock with its legs positioned differently than that shown in Mr. Dyer's photograph. The placement of the baby mountain lion's tail, hind paws and front paws is also different in Mr. Napier's sculpture. Despite these differences, the fact remains that the expression of the mother mountain lion with the baby in its mouth about to jump from a rock in Kent Dyer's photograph contains a natural and instinctive pose taken by the animal. Finally, unlike Defendant Jason Napier's "Precious Cargo" sculpture, the sculpture created in Rogers v. Koons was not a three dimensional sculpture. Instead, the backside of the wooden sculpture in Rogers was flat. Koons made no attempt to create what could not be seen in the photograph taken by Rogers. D. Mannion vs. Coors Brewing Supports Defendants' Position that No Protectable Elements of Plaintiffs' Photograph Were Infringed

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The Court in Mannion v. Coors Brewing Company, attempts to identify the protectable elements of photographs. Although the Court recognizes that copyright in a photograph conveys no rights over the subject matter conveyed in the photograph, the

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Court states that a photographer who arranges or otherwise creates the subject matter that his camera captures may have the right to prevent others from producing works that depict that subject. 75 U.S.P.Q.2d 1529, 1533 (S.D.N.Y. 2005). The Court further identified a photograph as being original in three different respects ­ originality in rendition, originality in timing, and originality in creation of the subject. Id. at 15341536. With respect to originality in rendition, the Court stated that "there may be originality which does not depend on creation of the scene or object to be photographed . . . and which resides [instead] in such specialties as angle of shot, light and shade, exposure, affects achieved by means of filters, developing techniques, etc." Id. at 1534. In the instant case, it is clear that Defendant Jason Napier did not copy any of these original elements of Plaintiff Kent Dyer's photograph. With respect to originality and timing, the Court stated that this aspect of originality is limited by the principal that copyright in a photograph ordinarily confers no rights over the subject matter. The Court went on to explain that the copyright in a photograph entitled Catch of the Day which depicts a salmon that appears to be jumping into the gaping mouth of a brown bear does not protect against subsequent photographs of bears feasting on salmon in the same location. The court further states that if another photographer were sufficiently skilled and fortunate to capture a salmon at the precise moment that it appeared to enter a hungry bear's mouth (and that some have tried with varying degrees of success), that the photographer, even if inspired by the photo entitled Catch of the Day would not necessarily have infringed the work because a photographer's copyright does not extend to the natural world he captures. Like the case at hand, Defendant Jason Napier used Plaintiff Kent Dyer's photograph for inspiration and as a result created sculpture of a mother mountain lion with a baby in its mouth perched on a rock. However, as noted by the Court in Mannion, Plaintiff Kent Dyer's copyright does not extend to the mother mountain lion's natural pose with the baby in its mouth that Plaintiff Kent Dyer was able to capture on film.
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Finally, with respect to originality in the creation of the subject, the Court cites to Rogers v. Koons to state that an artist who arranges and then photographs a scene often will have the right to prevent others from duplicating that scene in a photograph or other medium. Id. at 1536. In particular, the Court stated that Rogers decided against taking a picture of the puppies alone and chose instead to include their owners. Rogers selected the light, the location, the bench on which the people holding the puppies are seated, and the arrangement of the puppies. Id. In contrast to the present case, Plaintiff Kent Dyer did not control the pose of the mother mountain lion with the baby in its mouth. At most, Plaintiff Kent Dyer was able to manipulate the animal so that it would strike a natural pose in an area in which Plaintiff Kent Dyer could capture the backdrop he wanted. Unlike the subject matter in Rogers v. Koons, Plaintiff Kent Dyer could not physically arrange and place the subjects, stand back, and give the subjects direct instructions as to the facial expression he desired as Rogers could with the people in the photo. Accordingly, as seen from the copyrightable elements of photographs discussed in Mannion, Defendant Jason Napier did not copy any of the copyrightable elements of Plaintiff Kent Dyer's photograph. E. Practical Application of These Facts Dictates a Finding of No Liability

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The practical application of finding liability on the facts in the present case would mean that no one else could create work in any medium showing the same type of live animal in a similar natural pose to that captured by a photographer no matter how different the live animal looked with respect to its attitude, gesture, muscle structure, coat, texture, lighting, shading, and background. Even if the natural pose of the mountain lion in Plaintiff Kent Dyer's photograph were protectable, the pose of the mother mountain lion and baby mountain lion in Defendant Jason Napier's sculpture possesses a significant number of differences from the pose of the mother mountain lion with the baby in its mouth shown in Plaintiff Kent Dyer's photograph. (See Appendix A to Defendants' Motion for Summary Judgment). Moreover, determining that the natural pose of the mother mountain lion with the baby in
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its mouth in Plaintiff Kent Dyer's photograph is protectable would mean that the position and location of the mountain lion's anatomy which is not viewable from the photograph is also protectable. This resulting conclusion would mean that an artist is capable of obtaining copyright protection to something which they have not even expressed. This is clearly not the intention of copyright law. II. EVEN IF PLAINTIFFS DISPUTE DEFENDANTS' PROFIT AND COST AMOUNTS, DEFENDANT'S UNIQUE STYLE AS A SCULPTOR SHOULD BE IDENTIFIED AS A PROFIT ELEMENT THAT IS NOT ATTRIBUTABLE TO DEFENDANT'S COPYRIGHTED PHOTOGRAPH Case law recognizes that other elements may be attributable to an infringer's profits that do not relate in any way to the copyrighted work that has been infringed.1 Defendants have submitted the Declaration of Jerold Miles to establish that the profits made on the purchase of Defendant's sculpture had more to do with Defendant's unique recognizable style of his bronze sculptures than to the copyrighted work of Plaintiff Kent Dyer. Defendants have also submitted two additional declarations which support that Defendants' profits are more attributable to Defendant's work than to Plaintiff's copyrighted work. Defendants have taken notice of Plaintiffs' contention that they are prejudiced by the Declaration of Jerold Miles and that they will likely claim the same of the recently submitted Declarations. However, in order to avoid any prejudice

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whatsoever, Defendants will make all Declarants available to Plaintiffs for deposition testimony prior to trial. As previously stated, this should not be a problem in that dispositive motions have not yet been decided by this Court and trial has not yet been set. At a minimum, this Court should declare that any potential damages may be reduced if Defendants can establish elements of profit that are attributable to Defendant's work rather than to Plaintiff's copyrighted work.

These "elements" may include Defendant's own notoriety and his related ability to command high prices for his work. Rogers v. Koons, 960 F.2d 301, 313 (2nd Cir. 1992); Sheldon v. Metro-Goldwyn Corp., 309 U.S. 390, 407-09, 84 L. Ed. 825, 60 S. Ct. 681, 44 U.S.P.Q. (BNA) 607 (1940).
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CONCLUSION For all the foregoing reasons, Defendants respectfully request that this Court grant

Defendants' Motion for Summary Judgment and find that Defendants are not liable for copyright infringement. Defendants further respectfully request that this Court declare any damages to be reduced by profit elements found attributable to Defendant Jason Napier's work. DATED this 20th day of December, 2005. SNELL & WILMER L.L.P.

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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 December 20, 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: Christopher D. Lonn, Esq. [email protected] Michelle Justine Perkins [email protected] s/Laura Zeman _

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