Free Statement - District Court of Arizona - Arizona

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CHRISTOPHER D. LONN, ESQ. SBN 015166 HYMSON & GOLDSTEIN, P.C. 2 14646 N. Kierland Boulevard, Suite 255 Scottsdale, Arizona 85254 3 Telephone: 480-991-9077 [email protected]
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Attorneys & Counselors 14646 N. Kierland Boulevard, Suite 255 Scottsdale, Arizona 85254 Telephone: 480-991-9077 / Facsimile: 480-443-8854

Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA KENT A. DYER and SUSAN DYER, husband and wife, Plaintiffs, v. Case No. CV04-0408 PHX SMM PLAINTIFFS' STATEMENT OF DISPUTED AND MATERIAL FACTS IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Oral Argument Requested)

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JASON NAPIER and DANIELLE NAPIER, husband and wife; NAPIER 13 SCULPTURE GALLERY, INC., a Washington corporation,
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Defendants. Pursuant to Rule 56, Fed. R. Civ. P. and U.S. District Court Local Rule 56.1, Plaintiffs set forth the following Statement of Disputed and Material Facts in Opposition to Defendants' Motion for Summary Judgment ("PSOF"). I. DISPUTED AND JUDGMENT 1. MATERIAL FACTS PRECLUDING SUMMARY

Plaintiffs Dispute ¶ 5 of Defendants' Statement of Facts.1

Plaintiffs dispute the second sentence as set forth in paragraph 5 of the DSOF. The wildlife sculptures attached to the DSOF as exhibit 15 do not ipso facto establish that Jason Napier has a "distinct and recognizable style with sleek, smooth, rounded lines and surfaces that are used to express the natural anatomy of the wildlife animals." The photographs attached to the DSOF at Exhibit 15 are merely examples of Jason Napier's
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For purposes of convenience, Defendants' Statement of Facts shall be abbreviated as "DSOF" and Plaintiffs' Statement of Disputed and Material Facts shall be abbreviated "PSOF."

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work for which no expert witness or other person in this case has opined that Mr. Napier has a distinct and recognizable style. The Declaration Jerold Miles attached to the DSOF at Exhibit 13 does not assist Defendants in this regard because the Declaration of Mr. Miles in inappropriate and inadmissible. More specifically, Defendants have not

disclosed Jerold Miles as a trial witness in this case. The Declaration of Jerold Miles was executed on October 7, 2005 -- long after discover concluded in this case. Plaintiffs have never been informed that Mr. Miles would opine "Jason Napier has his own recognizable style as a sculptor of wildlife." See ¶ 3 of the Declaration of Jerold Miles attached to DSOF at Exhibit 13. The Declaration of Jerold Miles must be stricken from the summary judgment record because Mr. Miles was not disclosed as a trial witness in this case, Mr. Miles has provided no foundation for how he is able to recognize a style of a wildlife sculptor, Mr. Miles has never been known to possesses knowledge concerning the style of Mr. Napier and the specific reasons for why he purchased the "precious cargo" sculpture and Mr. Miles statement was not provided to Plaintiffs before discovery concluded. Consequently, the Declaration of Jerold Miles must be stricken and

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disregarded by this Court. 2. Plaintiffs Dispute ¶ 6 of Defendants' Statement of Facts.

Contrary to the statement made by Defendants' in paragraph 6 in their DSOF, Plaintiff Kent Dyer testified under oath at his deposition that he did not meet Jason Napier until 2001. Kent Dyer stated numerous times at his deposition that the first time he met Jason Napier was in 2001 at the Carefree art show. See Exhibit 1 to PSOF, deposition testimony of Kent A. Dyer dated July 29, 2005 at pages 70, l.18 through 72, l.9. 3. Plaintiffs Dispute ¶ 7 of Defendants' Statement of Facts.

As set forth above in Plaintiffs' Statement of Disputed Facts concerning paragraph 6 of the DSOF, Mr. Dyer's deposition testimony at pages 70 through 72 thereof established that Mr. Dyer did not speak to Jason Napier about using the "Mother
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Mountain Lion with Baby in Mouth" photograph as a reference to create a bronze sculpture at the 1998 Carefree art show because Mr. Dyer did not meet with or speak with Jason Napier until the Carefree art show in March 2001. Id. In addition, Plaintiff Kent Dyer's response to Defendants' first set of Non-Uniform Interrogatories at Response no. 2 there for further supports Plaintiffs' position and contradicts the facts set forth by Defendants in paragraph 7 of the DSOF. See Plaintiffs' Responses to

Defendants' First Set of Non-Uniform Interrogatories at Response No. 2 dated May 13, 2005 attached hereto as Exhibit 2. 4. Plaintiffs Dispute ¶ 9 of Defendants' Statement of Facts.

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Defendants' self-serving statement that he used in a number of "reference materials" to create the various versions of the original artistic image created by Plaintiff in his photograph "Mother Mountain Lion with Baby in Mouth" proves little and lacks credibility. As Defendants set forth in paragraph 8 of the DSOF there is no dispute that Jason Napier had access to Plaintiffs' copyrighted photograph before he turned it into a sculpture that he sold for profit. The only remaining issue is the "substantial similarity" issue that will establish that Defendants copied Plaintiffs' protected photograph. Whether or not Defendants claimed they used other reference materials to create the bronze sculptures, the simple truth is that the sculptures created by Defendants are strikingly similar to Plaintiffs' copyrighted photograph that Defendant Jason Napier undeniably had access to before he created the "Precious Cargo" sculptures. See DSOF at ¶ 8. See Plaintiffs' Photograph and a photograph of the infringing sculpture attached hereto as Exhibit 8. More importantly, one independent witness and Plaintiffs' expert witness have declared under oath that Defendant Napier copied Plaintiffs' photograph. Set forth are two specific statements from these witnesses:

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I was disturbed that Mr. Napier copied the photograph taken by Kent Dyer. As a result, I placed an anonymous phone call to Kent Dyer to inform him of what I had seen at the foundry. In my opinion as a mold-maker and a sculptor, there is no question that Mr. Napier had copied the image from Mr. Dyer's photograph of the mother mountain lion with her cub in its mouth. See deposition transcript of Leslie Bell dated January 31, 2005 at Exhibit 1 thereof (Declaration of Leslie Bell) at ¶ 8, attached hereto as Exhibit 3. Leslie Bell is an independent third-party witness who is a sculptor and mold-maker. She has known Defendant Jason Napier since 1991. Id. at ¶ 2 and 7 (Declaration of Leslie Bell). (Emphasis added). Q. In your expert opinion is the Napier "Precious Cargo" sculpture substantially similar to the Dyer photograph? A. Oh, yeah. I think it is a direct rip off. See deposition transcript of Jeffrey Tritel dated August 4, 2005 at page 81, ll. 22-25, attached hereto as Exhibit 4. (Emphasis added). 5. Plaintiffs Dispute ¶ 11 of Defendants' Statement of Facts.

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Plaintiffs' dispute paragraph 11 of the DSOF because the photographs attached by Defendants as Exhibit 9 to the DSOF are of poor quality and do not depict the same angle and expression that exist in Plaintiffs' copyrighted photograph. In fact, Plaintiff Kent A. Dyer noted this fact when shown the photograph set forth in Exhibit 9 of the DSOF when he specifically stated: And I don't think this a very good or fair comparison these are really bad photographs, bad angles, bad copies. And it is not comparing apples to apples. It is just, they are not even, you know worthy, all different angles. This is my angle right here so I just wanted to say that that is a very unfair comparison. See deposition of Kent Dyer attached hereto as Exhibit 1 at page 90, ll. 17-23. 6. Plaintiffs Dispute ¶ 15 of Defendants' Statement of Facts.

Plaintiffs dispute paragraph 15 of the DSOF because minor and insignificant differences between Mr. Dyer's copyrighted photograph entitled "Mother Mountain Lion
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with Baby in Mouth" and Defendant Napier's "Precious Cargo" bronze sculptures do not under governing law demonstrate that Defendant Napier created his own "original work" simply by making some insignificant changes from the photograph to his sculptures and by changing the medium of expression. Plaintiffs' expert witness, Jeffrey Tritel, a sculptor and mold-maker, stated throughout his deposition testimony that "there is virtually no difference" between the sculpture and the photo because both express a particular idea. See deposition of Jeffrey Tritel at page 51 ll. 19-22. In further expressing his view as an educated sculptor and artist, Mr. Tritel further stated: That in the sculpture even right down to the title, which is Precious Cargo, emphasizes that the same intent which is the protective nature of the mother mountain lion with her kitten. And whether the paws, whether one has claws or the other one doesn't and whether a paw is spaced three inches wider in one than the other, does not affect that intent or the contentthe communicative content of the sculpture I think is identical to the communicative content of the photograph. See Id. at page 52 ll.1-10. Throughout the course of Mr. Tritel's deposition he specifically noted that Jason Napier copied Kent Dyer's intent and that the very essence of the photograph was reproduced in Defendant Napier's sculpture. Id. at page 53, ll. 2-4 and page 74, ll. 14-17. Indeed, as Plaintiffs' set forth above and in response to Defendants' Statement of Facts at ¶ 9, Mr. Tritel opined that Defendant Napier's "Precious Cargo" sculpture is a "direct rip off" of Mr. Dyer's photograph. Id. at page 81, ll. 22-25. Also in accord with this statement is independent witness Leslie Bell. See Exhibit 1 of her deposition that is her Declaration starting at paragraph 8 thereof that Mr. Napier copied the photograph of Mr. Dyer in making his bronze sculptures. See also Exhibit 8 attached hereto (comparison photograph).

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Plaintiffs Dispute ¶ 16 through 18 of Defendants' Statement of Facts.

Defendants list paragraphs 16, 17 and 18 of their DSOF as the opinions and deposition testimony of Jane S. Kinne in support of Defendants various positions to avoid liability in this case. Ms. Kinne was deposed at length on August 2, 2005, and during that deposition Plaintiffs learned that she is not a proper expert witness in this case. This case involves allegations of copyright infringement, issues relating to photography, and issues relating to bronze sculptures. As set forth more fully below, Ms. Kinne admitted that she is not a lawyer, she is not a photographer and she is not a sculptor. With regard to issues of law, Ms. Kinne is not an attorney and is therefore not qualified to opine on copyright law. With regard to issues of photography and sculpting, since she is neither a photographer nor a sculptor her foundational basis for her testimony and comments are unfounded and inadmissible. Jane Kinne stated the following at her deposition: · Jane Kinne is not a lawyer. See deposition transcript of Jane S. Kinne dated August 2, 2005 at page 38, ll. 13-15, attached hereto as "Exhibit 5". · Jane Kinne is not a photographer. Id. at page 20, ll. 1-5. · Jane Kinne is not a sculptor. Id. at page 20, ll. 68. Ms. Kinne's deposition testimony is rife with references to her knowledge of copyright law, knowledge of photography and references to sculpting and sculpture. Because Ms. Kinne is unqualified to opine on legal matters, photography as art and sculpture as art and the process of sculpting, her deposition testimony should be disregarded by this court on all such issues. Defendants are offering Ms. Kinne's

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testimony on core issues in this case where she has no expertise.

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Paragraphs 16, 17 and 18 of Defendants DSOF purport to offer the alleged "expertise" of Jane Kinne in order to opine on copyright law, copyrightable elements, the concept of "substantial similarity," and alleged differences between Defendant Napier's sculpture and Plaintiffs' copyrighted photograph. With regard to the alleged differences as noted by Jane Kinne, those issues where amply addressed by Plaintiffs' in controverting the facts set forth in paragraph 15 of Defendants' DSOF (¶ 6, supra). More notably Plaintiffs' expert witness Jeffrey Tritel stated numerous times that slight or inconsequential differences between the photograph and the sculpture do not take away from the overall "substantial similarity" between the sculpture and the photograph nor do they materially change the original artistic expression and intent of Mr. Dyer's photograph as it appears in Mr. Napier's bronze sculpture. As governing law dictates, the mere change in medium from a two dimensional photograph to a three dimensional sculpture is not enough to strip the former of its copyright protection. Defendants call on Jane Kinne to opine as to the "substantial similarity" between the photograph and the sculpture. Setting aside Ms. Kinne's lack of expertise and foundation to opine on such matters, it is clear from the testimony of Jeffrey Tritel and Leslie Bell that there are striking similarities between Mr. Dyer's copyrighted photograph and the bronze sculpture created by Defendant Napier. More to the point, independent witness Leslie Bell called it a "copy" and Mr. Tritel has referred to it as a "direct rip off" of Mr. Dyer's photograph. See Plaintiffs' citation to the Summary Judgment record as set forth above in response to Defendants' Statement of Facts at ¶ 9 (¶ 4, supra). See also Exhibit 8. Interestingly, Jane Kinne served as an expert witness in the Rogers v. Koons case that Defendants cite repeatedly throughout their DSOF. In that case, Ms. Kinne was advancing the interest of the photographer and against the sculptor. Now, for a handsome fee, Ms. Kinne is turning her back on the photographer's interests and advancing the arguments made by Defendant Napier in order to assist him in avoiding liability. Indeed,
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Ms. Kinne's "marching orders" are set forth in her expert witness engagement letter dated August 13, 2004 were she agrees to the following instructions: We intend to use your declaration as an attachment to plaintiffs which outlines that there is no liability in this case. In the event that this case does go to trial, we would like you to serve as our expert. See Exhibit 1 to Jane Kinne's deposition (letter dated August 13, 2004) attached hereto as part of Exhibit 5. (Emphasis added). As the Court can see from Jane Kinne's expert report and resume attached to the DSOF at Exhibit 10, she has been a "professional witness" for approximately 30 years. Oddly enough, Ms. Kinne's resume and deposition testimony also show that she has spent a large portion of her career advancing the interest of photographers. Ms. Kinne has also admitted that various courts have rejected her expert testimony in the past and that she "has had a great deal of trouble with the Second District Court of Appeals." See Jane Kinne's deposition testimony at page 100, l. 6 through page 102 at l. 10. During Jane Kinne's deposition substantial discussion was had concerning Kent Dyer's "Mother Mountain Lion with Baby in Mouth" photograph. While hesitant to do so, Jane Kinne admitted the uniqueness of Kent Dyer's artistic creation. More

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specifically when asked if she had seen another photo exactly like Mr. Dyer's photograph she said "Exactly like it, no, I can't claim to have seen another." See deposition of Jane Kinne at page 75, l. 3-4. Ms. Kinne also admitted that she has seen many photographs of mountain lions with a kitten in mouth but not one just like Mr. Dyer's. Id. at page 75, ll. 3-13. Jeffrey Tritel's testimony is in accord with that of Ms. Kinne insofar as he has also never seen another photograph like Plaintiffs' original work. See Exhibit 4 at page 73, ll. 10-19. It is clear from Ms. Kinne's deposition testimony and that of Jeffrey Tritel that Mr. Dyer's photograph is an original artistic expression that is unique.

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Plaintiffs Dispute ¶ 19 of Defendants' Statement of Facts.

Defendants offer the testimony of Plaintiffs' expert witness, Jeffrey Tritel, to support their claim that there are several differences between Plaintiffs' copyrighted photograph and Defendants' bronze "Precious Cargo" sculpture. Defendants' microanalysis is undertaken in the hope that this Court cannot see the proverbial "forest through the trees." As noted above in connection with Plaintiffs' discussion of DSOF at ¶ 9, Mr. Tritel testified consistently throughout his deposition that insignificant differences concerning the placement and spacing of paws and so forth does not affect the intent or the content of the communicative content of the sculpture as it relates to the photograph. See deposition of Jeffrey Tritel at pages 51 and 52 at exhibit 4 of the PSOF. Mr. Tritel firmly believes that Jason Napier copied Kent Dyers intent. (See page 53 of Mr. Tritel's deposition at Exhibit 4). Mr. Tritel has also opined that Mr. Napier's sculpture is a "direct rip off" of Kent Dyer's photograph (See page 81 of Tritel's deposition). See also Exhibit 8. 9. Plaintiffs Dispute ¶ 20 of Defendants' Statement of Facts.

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Plaintiffs note that the "updated spreadsheet" attached to the DSOF as exhibit 16 was produced immediately before the discovery cut-off deadline and long after Danielle Napier (the author of the updated spreadsheet) was deposed in Seattle, Washington in July 2005. Up to this point, Plaintiffs have not had the opportunity to re-depose Danielle Napier on the accuracy of the updated spreadsheet attached to the DSOF as Exhibit 16. Plaintiffs vigorously dispute the numbers set forth in the updated spreadsheet and believe that the gross revenue from the "Precious Cargo" sculpture and the net profits are inaccurate and understated. Indeed, the deposition testimony of Danielle Napier

demonstrates numerous inaccuracies and accounting errors made in the spreadsheet/ accounting of profits. Moreover, the spreadsheet/accounting itself (as revised) still

includes "estimated expenses" and not expenses supported by verifiable receipts. DSOF,
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Exhibit 16 at "Napier 000191". See also deposition transcript of Danielle Napier dated July 18, 2005, at page 15, ll. 10 through page 82, l. 6 at Exhibit 7. 10. Plaintiffs Dispute ¶ 21 of Defendants' Statement of Facts.

As noted above in Plaintiffs discussion of paragraph 5 of the DSOF, there is no independent and admissible proof that Jason Napier's wildlife sculptures have their own "distinct and recognizable style." Defendants' use of the declaration of Jerold Miles declaration dated October 7, 2005 is improper and unfair to Plaintiffs. This is true because, as noted above in ¶ 1, Mr. Miles has not been listed by Defendants as a trial witness and he has not been listed as a trial witness for the purpose of testifying about Jason Napier's alleged "unique and recognizable style" as a sculptor. Defendants use of this post-discovery deadline Declaration from Jerold Miles places Plaintiffs at prejudice because Plaintiffs have not had the opportunity to depose Mr. Miles to test his foundational knowledge as to Jason Napier's "unique and recognizable style" verses the style of other bronze sculptors in existence. Furthermore, the declaration of Jerold Miles does not contain enough foundational information for him to be able to opine as to Jason Napier's alleged "unique and recognizable style" as a sculptor. Consequently, Plaintiffs urge this Court to disregard the Declaration of Jerold Miles attached to the DSOF as Exhibit 13 and to view paragraph 21 of the DSOF as controverted. II. ADDITIONAL MATERIAL FACTS PRECLUDING MOTION FOR SUMMARY JUDGMENT 11. DEFENDANTS'

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Kent Dyer testified at his deposition that the photograph entitled "Mother

Mountain Lion with Baby in Mouth," is his original creation and his original work. More specifically, Mr. Dyer testified "that's my artistic creation, absolutely. That was thought out completely, planned, everything." See deposition of Kent A. Dyer at page 80, ll. 9-13. 12. Consistent with the foregoing paragraph, Mr. Dyer also testified at his

deposition that "This is my artistic vision. I thought it up. I planned it. I executed it. I
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arranged it. I planned as much as you can possibly plan, just like Rogers did, I guess." Id. at page 81, ll. 5-8. 13. Kent Dyer testified at his deposition that in terms of trying to get the ideal

pose for the copyrighted photograph, it took "at least a dozen times, probably more" in working with animal trainer Troy Hyde to get the proper angle of the mother with the baby in its mouth. Id. at page 50, ll. 19-52, l. 3. 14. Throughout the deposition of Troy Hyde dated September 1, 2005 he made

numerous references to Kent Dyer being "very much an artist" and "being such an artist." See deposition transcript of Troy Hyde dated September 1, 2005 at page 31, ll. 9-18, attached hereto as Exhibit 6. 15. A substantial portion of Mr. Hyde's deposition testimony was devoted to

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the exhaustive amount of work Kent Dyer put into creating the photograph entitled "Mother Mountain Lion with Baby in Mouth" and how he acted like a "motion picture director". See deposition transcript of Troy Hyde, Exhibit 6 page 31, l. 8, page 36, l. 4. RESPECTFULLY SUBMITTED this 18th day of November, 2005. HYMSON & GOLDSTEIN, P.C.

/s/Christopher D. Lonn Christopher D. Lonn 14646 N. Kierland Boulevard, Suite 255 Scottsdale, Arizona 85254 Telephone: 480-991-9077 Attorneys for Plaintiffs

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CERTIFICATE OF FILING X

I hereby certify that on November 18, 2005, I electronically transmitted the

attached document to the Clerk's office via the CM/ECF filing system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Laura J. Zeman SNELL & WILMER One Arizona Center # 1900 400 E. Van Buren Phoenix, AZ 85004-2202 Attorney for Defendants
_____ I hereby certify that on ___________, 2005, I served the attached document by

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facsimile and/or United States mail on the following, who are not registered participants of the CM/ECF filing system.

HYMSON & GOLDSTEIN, P.C.

/s/Danielle Limon

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