Free Memorandum - 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 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 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Oral Argument Requested)

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HYMSON & GOLDSTEIN, P.C.

JASON NAPIER and DANIELLE NAPIER, husband and wife; NAPIER SCULPTURE GALLERY, INC., a 13 Washington corporation,
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Defendants.

Plaintiffs, KENT A. DYER and SUSAN DYER ("Plaintiffs"), by and through undersigned counsel, hereby submit their Memorandum of Points and Authorities in Support of their Response in Opposition to Defendants' Motion for Summary Judgment. 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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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION. The factual record in this case is so contrary to Defendants' position of no liability that it is surprising that Defendants are moving for summary judgment. It is pure folly for Defendants to allege that they have not copied any "protectable elements" of Plaintiffs' copyrighted photograph. This is so because any reasonable person or "average observer" can see the striking similarity between Plaintiffs' copyrighted photograph entitled "Mother Mountain Lion with Baby in Mouth" ("Plaintiffs' Photograph") and the sculpture made by Defendant Jason Napier entitled "Precious Cargo". A visual

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comparison between Plaintiffs' Photograph and Defendants' sculpture tells the tale -- the striking similarity of the sculpture to the source photograph is manifest. The record contains testimony of how the sculpture is a "direct rip-off" of Plaintiffs' Photograph. Defendants also move for summary judgment on damages issues. Defendants request this Court to proclaim that Plaintiffs' damages are limited to no more than onehalf of Defendants' net profit from the sale of Defendants' "Precious Cargo" sculpture. As set forth in the PSOF at ¶¶ 9 and 10, the evidence offered in support of this proposition is faulty and the Declaration of Jerold Miles should be stricken from this record and disregarded. II. FACTS PRECLUDING SUMMARY JUDGMENT. As Defendants concede, there is no dispute that Plaintiff properly copyrighted his photograph. It is also undisputed that Defendant Jason Napier had access to that

photograph, and that within a few months of obtaining Plaintiffs' Photograph he created the first monument sized "Precious Cargo" sculpture. A. A Dispute Exists As To When Kent Dyer and Jason Napier First Met.

Kent Dyer testified at his deposition that he did not meet Jason Napier until the Carefree Art Show in 2001-- not at the Carefree Art Show in 1998, 1999 or 2000 as
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claimed by Defendants. PSOF1 at ¶¶ 2 and 3. Mr. Dyer has also made the same statement through his Responses to Defendants' First Set of Non-Uniform Interrogatories. PSOF at ¶¶ 3. B. Jason Napier's Distinctive Style Is At Issue.

Defendants' attempt to prove that Jason Napier has his own "distinct and recognizable style" as an artist through self-serving statements and copies of photographs that have not been produced to Plaintiffs in discovery is improper. PSOF at ¶ 1 and 4. Defendants self-serving statements about his style and the photographs attached to the DSOF at Exhibit 15 do not, as a matter of law, display a distinct style. Furthermore, the photographs attached as part of DSOF, Exhibit 15 have little bearing on the issue whether Defendant Napier copied the original work of Kent Dyer. PSOF at ¶ 1 and 4. C. The Declaration of Jerold Miles Must Be Stricken From the Summary Judgment Record.

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In an effort to demonstrate that Jason Napier has a distinct and recognizable artistic style, Defendants offer the Declaration of Jerold Miles ("Miles Declaration") as support. With regard to the Miles Declaration, Plaintiffs urge this Court to strike it and to disregard the facts set forth therein. PSOF at ¶¶ 1 and 10. Mr. Miles has not been listed as a trial witness by Defendants, 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, and Mr. Miles' Declaration was not disclosed to Plaintiffs in advance of the discovery cut-off deadline. PSOF at ¶ 1. As such, Plaintiffs are now prejudiced because they have not had the opportunity to depose and to test his ability to recognize Mr. Napier's alleged "unique and recognizable" style as a sculptor or to examine Mr. Miles as to precisely why he purchased the first monument sized addition of "Precious Cargo." On a more fundamental evidentiary level, the Miles Declaration

Plaintiffs' Statement of Disputed and Material Facts is abbreviated as "PSOF" and Defendants' Separate Statement of Facts is abbreviated as "DSOF".

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does not contain enough foundational information to allow him to opine on Jason Napier's alleged "unique and recognizable" style as a sculptor. Consequently, Plaintiffs urge this Court to strike the Miles Declaration and to disregard it for purposes of Defendants' Motion for Summary Judgment. D. Defendant Napier's Alleged Use Of "Reference Materials".

Defendant Napier's self-serving statement that he used a number of "reference materials" to create "Precious Cargo" proves little and lacks credibility. PSOF at ¶ 4. Throughout this litigation Defendants have presented no independent proof that "reference materials" were used to create the image depicted in the "Precious Cargo" sculpture. Id. It is undisputed that Jason Napier had access to Plaintiffs' copyrighted photograph before he turned it into a sculpture that he sold for a significant profit. Substantial similarity is the remaining issue for Plaintiffs to establish copying by Defendants. As the Court can see from reviewing the Verified Complaint and

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Application for Preliminary Injunction filed with this Court on February 26, 2004, there is a "striking similarity" between Plaintiffs' copyrighted photograph and the "Precious Cargo" sculpture created by Defendant Jason Napier shortly after he obtained access Plaintiffs' photograph in 2001. See also PSOF at Exhibit 8. Two additional witnesses have testified that Defendant Napier copied Mr. Dyers photograph. PSOF at ¶ 4. E. The Photographs Of "Precious Cargo" Produced By Defendants Are Of Poor Quality and Not Representative Of Plaintiffs' Photograph.

The photographs referenced by Defendants as set forth in Exhibit 9 to the DSOF are of poor quality and do not depict the same angle and expression that exist Plaintiffs' copyrighted photograph. PSOF at ¶ 5. Instead, the Court should review Exhibit 8 of the PSOF for a better comparison of the photograph to the sculpture. F. Jane Kinne Is Not Qualified To Serve As An Expert Witness.

Defendants list paragraphs 16, 17 and 18 of the DSOF as the opinions and deposition testimony of Jane S. Kinne in support of Defendants' various positions to
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avoid liability in this case. During Ms. Kinne's deposition, Plaintiffs learned that she is not a proper expert witness in this case. This case involves allegations of copyright infringement, issues relating to art of photography, and issues relating to sculpture. Ms. Kinne admitted that she is not a lawyer, she is not a photographer, and she is not a sculptor. See PSOF at ¶ 7. Ms. Kinne's deposition testimony is rife with references to her knowledge of copyright law, knowledge of photography, and references to sculpting and sculpture. See DSOF at ¶¶ 16-18. 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 testimony on core issues in this case where she has no expertise. With regard to the alleged differences between the Photograph and the sculpture as noted by Ms. Kinne, those issues have been addressed and controverted by Plaintiffs. See PSOF at ¶ 6. More notably Plaintiffs' expert witness Jeffrey Tritel stated numerous times that slight or inconsequential differences between the Plaintiffs' photograph and the Defendants' 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. PSOF at ¶ 8. Defendants also call on Jane Kinne to opine as to the "substantial similarity" between the photograph and the sculpture. Based on the testimony of Jeffrey Tritel and Leslie Bell, it is established that there are striking similarities between Mr. Dyer's copyrighted photograph and the sculpture created by Defendant Napier. PSOF at ¶¶ 4 and 8. 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. PSOF at ¶ 4. Jane Kinne served as an expert witness in the Rogers v. Koons case. In Rogers, Ms. Kinne was advancing the interest of the photographer and against the sculptor.
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Now, for a handsome fee, Ms. Kinne is advancing the arguments made by Defendant Napier. Ms. Kinne's "marching orders" are to find "no liability" are set forth in her expert witness engagement letter. See PSOF at ¶ 7. 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." PSOF ¶ 7. Jane Kinne admitted the uniqueness of Kent Dyer's original artistic creation. When asked if she has seen another photo like Mr. Dyer's photograph, she said "exactly like it, no, I can't claim to have seen another." PSOF ¶ 7. 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. The depositions of Jane Kinne and Jeffrey Tritel prove that

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Plaintiffs' Photograph is an original artistic work. G. Plaintiffs' Photograph And Defendants' Sculpture Are "Substantially Similar" Despite Minor Differences.

Defendants' offer the statements of Plaintiffs' expert witness, Jeffrey Tritel, and statements from Plaintiff himself acknowledging some differences between Plaintiffs' Photograph and Defendants' sculpture. DSOF at ¶ 19. Minor differences between the Plaintiffs' Photograph and Defendants' sculpture does not mean that "substantial similarity" does not exist. Indeed, "substantial similarity" remains intact despite such inconsequential differences -- this is so because the core of the original artistic expression is not adversely impacted. PSOF at ¶ 8. Tritel stated Jeffrey Tritel is a sculptor and mold-maker. Mr. Tritel stated throughout his deposition testimony that "there is virtually no difference" between the sculpture and Plaintiffs' Photograph because both express a particular idea. PSOF at ¶ 6. In further expressing his view as an educated sculptor and artist, Mr. Tritel testified: 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
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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 content-the communicative content of the sculpture I think is identical to the communicative content of the photograph. Id. (Emphasis Added). H. Defendants "Updated Spreadsheet" Is Inaccurate And Contains Errors.

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 was deposed in July 2005. Plaintiffs have not had the opportunity to re-depose Danielle Napier on the accuracy of the updated spreadsheet. Plaintiffs dispute the

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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. PSOF at ¶ 9. The deposition of Danielle Napier demonstrates numerous inaccuracies and

accounting errors made in her spreadsheet/ accounting. Id. Exhibit 16 to the DSOF on its face shows numerous figures are merely "estimated" and lack evidentiary support. Id. I. Plaintiff Is An "Artist" And His Work Is An Original Creation.

Kent Dyer testified that his photograph is his original creation and his original work. PSOF at ¶¶ 11-12. More specifically, Mr. Dyer testified "that's my artistic creation, absolutely. That was thought out completely, planned, everything." Id. Mr. Dyer also testified at his deposition that "This is my artistic vision. I thought it up. I planned it. I executed it. I arranged it. I planned as much as you can possibly plan, just like Rogers did, I guess." Id. In terms of trying to get the ideal pose for the 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 ¶ 3. Troy Hyde's deposition reveals that he made numerous references to Kent Dyer being "very much an artist" and "being such an artist." PSOF at ¶14. A substantial portion of Mr. Hyde's deposition testimony was devoted to the exhaustive amount of work Kent Dyer put into creating the subject photograph. PSOF at ¶ 15.
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III.

LEGAL ARGUMENT. A. The Summary Judgment Standard.

With regard to copyright infringement actions, the Ninth Circuit Court of Appeals and other United States Circuit Courts of Appeal have held that summary judgment is disfavored in copyright infringement actions because "substantial similarity" is usually an extremely close factual issue to be determined by a trier of fact. Frybarger v. Int. Business Machines Corp., 812 F.2d 525, 528 (9th Cir. 1987). B. Plaintiffs' Photograph Qualifies as Original Artistic Work. Feist Publications, Inc. v. Rural

The essence of copyright is originality.

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Telephone Co., 499 U. 340, 345, 111 S. Ct. 1282, 1287 (1991). "To qualify for copyright protection a work must be original to the author." Id. Originality and copyright terms mean that the work possesses "at least some minimal degree of creativity." Id. 1 M. Nimmer & D. Nimmer, copyright §§ 2.01[A], [B] (1990). In Feist Publications, Justice O'Connor writing for the United States Supreme Court opined: To be sure, the requisite level of creativity is extremely low; even a slight amount with suffice. The vast majority of works make the grade quite easily as they possess some creative spark, "no matter how crude, humble or obvious" it might be. (Emphasis Added). Id., § 1.08 [C] [1]. The Ninth Circuit has opined that "[a]nyone can copyright anything if he adds something original to its expression." Kamar Int'l, Inc. v. Russ Berrie & Co., 647 F.2d 1059, 1061 (9th Cir. 1981) 1 Nimmer on Copyright, Chpt. 2 (1981). Copyright infringement is established by proof of copying by the infringer. Id. at 1062. The Ninth Circuit astutely noted that the act of copying is rarely personally witnessed and is usually proven through circumstantial means. Id. The Plaintiff must demonstrate that the Defendant had access to the copyrighted work, and that the Defendant's work-product is "substantially similar" to the Plaintiffs' copyrighted work.
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Id. Once plaintiff makes such a showing the evidentiary burden shifts to the defendants to prove that their work was not copied but independently created. Id. Courts have determined that the Defendant's access to the Plaintiffs' copyrighted work and similarity between the Plaintiffs' copyrighted work and the Defendants' work-product constitutes strong circumstantial evidence of copying. Herbert Rosenthal Jewelry Corp. v.

Kalpakian, 446 F.2d 738, 741 (9th Cir. 1971). The Ninth Circuit has recently opined that "[w]here a high degree of access is shown, we require a lower standard of proof of substantial similarity." Swirsky v. Carey, 367 F.3d 841, 844 (9th Cir. 2004). (Emphasis Added). In the case at bench, there is no dispute that Defendant Jason Napier had access to Plaintiffs' copyrighted photograph. DSOF at ¶ 8. Defendant Jason Napier obtained a copy of Plaintiffs' Photograph at the Carefree Art Show in 2001. Id. Because a high degree of access is uncontroverted, the Ninth Circuit allows Plaintiff to prove "substantial similarity" by a lower standard of proof. Swirsky, 367 F.3d at 844. The record here is abundant with evidence demonstrating that Plaintiffs' work is an original artistic creation and that Defendant Napier's infringing sculpture entitled "Precious Cargo" is at least "substantially similar" to Plaintiffs' Photograph. With

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regard to the issue of creativity, governing case law states that the requisite level of creative is extremely low. Feist Publications, Inc., 499 U.S. at 345. The Second Circuit Court of Appeals in Rogers v. Koons, 960 F.2d 301, 307 (2nd Cir. 1992), also opined that "the quantity of originality that need be shown is modest -- only a dash of it will do." (Emphasis Added). See also 1 M. Nimmer & D. Nimmer, Nimmer on Copyright § 1.08 [C] [1] (1991). With regard to the originality issue, the record herein establishes that Kent Dyer went to extraordinary lengths and effort to create the photograph at issue. These facts are well-established in the DSOF at ¶ 3; PSOF at ¶¶ 3 (See generally Plaintiffs' Responses to Defendants' First Set of Non-Uniform Interrogatories), 11, 12, 13, 14, and 15. The
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record attached to the DSOF and the PSOF establish that Mr. Dyer traveled to Montana and hired animal trainer Troy Hyde for the express purpose of using captive mountain lions and their kittens to capture the precise artistic vision in his mind. PSOF at ¶¶ 11-12; DSOF at ¶ 3. There is no dispute that Kent Dyer spent days scouting the best location in Montana, studying the lighting, applicable angles, carefully selected his film and camera, he obtained the desired expression of the mountain lions, and he hired Troy Hyde and his assistants to pose the mountain lions for his photograph. Id. Based on the case law cited above, the record demonstrates that Mr. Dyer extended a significant amount of creative effort and he did substantially more than a "dash" to satisfy the "originality" requirement. With regard to the "substantial similarity" issue, the Ninth Circuit has recently opined that a lower standard of proof is acceptable for Plaintiff to prove "substantial similarity" where a higher degree of access is shown. In this case, Defendants' access is undisputed. Even though Plaintiff may be the beneficiary of a lower standard of proof to prove "substantial similarity," the record itself makes a strong case for `substantial similarity" and perhaps even a striking similarity. The Court should compare Plaintiffs' Photograph to Defendants' "Precious Cargo" sculpture as attached to Plaintiffs' Verified Complaint and Application for Preliminary Injunction. See also PSOF at Exhibit 8 (two photos on one page).

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Accordingly, the evidence in the summary judgment record establishes the following: (i) Plaintiff created an original work that was properly copyrighted, (ii) Defendant had access to Plaintiffs' Photograph; and (iii) Defendants' "Precious Cargo" sculpture is "substantially similar" to Plaintiffs' Photograph. C. The Facts in Rogers v. Koons Are On Point and Should Govern This Case.

The facts in Rogers v. Koons are very similar to the case at bench. Plaintiff Art Rogers was a photographer and he brought a copyright infringement action against
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Defendant Jeff Koons, a sculptor, for infringing upon his photograph depicting a smiling husband and wife holding a litter of puppies. Rogers, 960 F.2d at 303. Like this case, the scene depicted in Rogers' Photograph is similar to Plaintiffs' Photograph insofar as a husband and wife holding a litter of puppies is not an unusual scene. The only material fact that is different in Rogers versus the case at bar is that Mr. Koons had "production notes" that directed his artisans to copy Rogers photograph. Id. at 305. Notwithstanding the lack of such direction in this case from Mr. Napier, the facts in Rogers v. Koons are on point and should be highly persuasive to this Court. This Court should also note that variations did exist between Mr. Koons' sculpture and the photograph taken by Art Rogers. The same is true in the case before this Court. Plaintiffs' agree with Defendants' that the decision in the Rogers case was made easier through the existence of the "production notes" made by Jeff Koons wherein he was directing his artisans to copy Rogers' photograph. It is also true, however, that the Second Circuit also noted that even if direct evidence of copying was unavailable, that the "district court's decision could be upheld in the case on the basis that Defendant Koons' access to the copyright work is conceded, and the accused work is so substantially similar to the copyrighted work that reasonable jurors could not differ on this issue." Rogers, 960 F.2d at 307 citing Warner Brothers, Inc. v. American

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Broadcasting Cos., Inc., 645 F.2d 204, 207 (2nd Cir. 1981). The rationale of the Rogers Court applies with equal force to this case because the Rogers Court did not end its analysis based on the direct evidence of copying. The Rogers Court further held that "substantial similarity" does not require copying of every detail. Id. In applying the "ordinary observer test" the relevant inquiry is "whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." Id. "Substantial similarity" is found where the points of similarity are greater than the points of dissimilarity. Id. at 308. The Court was careful to state that "no copier may defend the act of plagiarism by pointing out how much of the copy he has not pirated." Id.
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The Rogers Court went to great lengths to address precisely why the idea of a couple sitting with eight small puppies on a bench has copyright protection even though it is a fairly common scene. In analyzing this issue, the Court wrote: It is not therefore the idea of a couple with eight small puppies seating on a bench, but rather Rogers' expression of this idea -- as caught in the placement, in the particular light, and in the expressions of the subjects -- that gives the photograph its charming and unique character, that is to say, makes it original and copyrightable. Rogers, 960 F.2d at 308. (Emphasis Added). Under the "ordinary observer test," the Rogers Court found that Mr. Koons used the identical expression of the idea that Rogers created: The composition, the poses, and the expressions were all incorporated into the sculpture to the extent that, under the "ordinary observer test," no reasonable jury could have differed on the issue of substantial similarity. Id. The Court further noted that the Defendant's additions to the sculpture, such as the flowers in the hair of the couple and the bulbous noses of the puppies, are in sufficient to raise a genuine issue of material fact with regard to copying in light of the overwhelming similarity to the protected expression of the original work. Id. (Emphasis Added). In the case sub judice, it is undisputed that there are some minor variations between the Plaintiffs' Photograph and the "Precious Cargo" sculpture. Under the

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rationale of Rogers v. Koons, such small changes when taken into consideration of the whole "total concept and feel" of the original artistic work does not mean that the sculpture is not substantially similar to the Plaintiffs' Photograph. The scene of a couple with eight small puppies is similar to the scene of a mother mountain lion with a baby in its mouth in the wild. As in Rogers, the expression of the protective nature of the mother mountain lion with its kitten in its mouth is the original and unique work of Kent Dyer. The summary judgment record shows that there are many different photographs of mountain lions in the wild carrying kittens, in this case, however, it is undisputed through
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the testimony of Jane Kinne that even though she has seen many photographs of mountain lions with a kitten in its mouth, she has not seen a photograph just like Mr. Dyer's. PSOF at ¶ 7. Likewise, Mr. Tritel has not seen a photograph just like Kent Dyer's. The "total concept and feel" of Mr. Dyer's artistic creation--emphasizing the protective nature of the mother mountain lion over its kitten--is the essence of the photograph and it is that very expression that Jason Napier was attracted to and which caused him to sculpt "Precious Cargo" in the first place. Jeffrey Tritel provided extensive deposition testimony on this point when he discussed the communicative content of Plaintiffs' Photograph and how the essence of it is the protective nature of the mother mountain lion with the baby in its mouth. PSOF at ¶¶ 6 and 8. Consequently, the analysis in Rogers v. Koons is directly applicable and should be highly persuasive to this Court in determining the originality and the "total concept and feel" of Plaintiffs' copyrighted photograph. Defendants cite Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003) to support their position. Contrary to Defendants' assertions, the alleged copyright infringement

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involving one of the artist's lifelike glass-in-glass sculptures of jellyfish is inapposite and not governing. Unlike the analysis in Rogers v. Koons, the Ninth Circuit determined that those sculptures were composed of unprotectable ideas and elements. The idea that the scope of copyright protection is narrow only applies where there is little variation between the lifelike representation of a natural creature and the protected work. Satava v. Lowry, 323 F.3d at 812-813. The Satava Court noted that realistic depictions of live animals may be protected under copyright law. Id. at 812. The analysis in Satava focused on jellyfish physiology. The Court can take judicial notice that there are precious few ways to depict the physiology of a jellyfish in the ocean. Because of the limitation on the physiology of a jellyfish, the Court found the copyright protection to be afforded to Satava to be "thin" and "because of this limited manor in which a jellyfish maybe depicted." Contrary to the facts in Satava, the mother
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mountain lion with the baby in its mouth as depicted by Plaintiff has numerous different poses and variations that can be manipulated by an animal trainer. As set forth in the DSOF and PSOF, Plaintiff Kent Dyer and Troy Hyde (animal trainer), provided extensive deposition testimony concerning the amount work and manipulation that went into creating the subject photograph in this litigation. DSOF at ¶ 3. Indeed, the deposition testimony of Troy Hyde reveals that he can control the actions, look, and pose of the mountain lion at a level of "about 85%." DSOF at ¶ 3 (at page 9 of the DSOF line 24). Of course, the same cannot be true with regard to the jellyfish in Satava. Based on the forgoing, Satava v. Lowry is factually inapposite for the reasons set forth above and should not be deemed a governing case. D. Mannion v. Coors Brewing Company Supports Plaintiffs' Position and Rogers v. Koons.

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District Judge Kaplan recently wrote a published opinion in Mannion v. Coors Brewing Co., ___ F. Supp. 2d ____, 75 U.S.P.Q. 2d 1529 (2005), addressing issues which are highly relevant to this case. Mannion explores the nature of copyright

protection in photographs. Another major question in Mannion is whether a trier of fact could find "substantial similarity" between a copyrighted photograph and a Coors billboard image. Id. Like the case at bar, access to the protected photograph was undisputed. Judge Kaplan wrote that "if a photographer arranges or otherwise creates the subject that his camera captures, he may have the right to prevent others from producing works that depict that subject."2 In support of this proposition, the Court cited Rogers v. Koons, 960 F.2d 301 (2nd Cir. 1992) and Gross v. Seligman, 212 F. 930 (2nd Cir. 1914). District Judge Kaplan set forth a novel approach in analyzing the nature of originality in a photograph. Judge Kaplan specifically discussed originality in the

rendition, originality in timing, and originality in creation of the subject. Originality in
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Because the decision in Mannion is so new, specific page references are not available. Consequently, attached hereto as Exhibit "A" is the decision as reprinted from Westlaw.

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Attorneys & Counselors 14646 N. Kierland Boulevard, Suite 255 Scottsdale, Arizona 85254 Telephone: 480-991-9077 / Facsimile: 480-443-8854

timing does not apply in these facts because Plaintiffs' Photograph was not the product of timing but instead the product of careful deliberation and planning. As such, originality in the rendition and originality in the creation will be discussed further. With regard to originality in the rendition, this does not depend on creation of the scene or the object to be photographed, but rather such things as "angle of shot, light and shade, exposure, effects achieved by means of filters, developing techniques, etc." Mannion [citations omitted]. As discussed above, there is no dispute that Plaintiff

expended a significant amount of time and energy in choosing the location in Montana in which to shoot the subject photograph, as well as his angle of shot, light and shade, exposure, use of camera, and the like. Thus, originality in the rendition exists. With respect to originality in the creation of the subject, Judge Kaplan describes this as the photographer creating "the scene or subject to be photographed." This type of originality, played a central role in Rogers v. Koons and Gross v. Seligman. See Mannion (under the heading "creation of the subject"). The Mannion opinion makes it clear that the photograph in Rogers v. Koons was original because it was original in the rendition and there was originality in the creation of the subject. Id. More importantly, the "originality and the creation of the subject" portion of the Rogers photograph was more salient than the originality in the rendition. The key to this analysis for Judge Kaplan was that originality in creation of the subject exists in this case, as in Rogers v. Koons. This is so because of the substantial effort used by Mr. Dyer and animal trainer Troy Hyde in arranging and manipulating the mother mountain lion with her kitten so as to achieve the specific artistic expression sought by Mr. Dyer. Mannion also notes that Rogers made a sound artistic decision when he decided that taking a picture of the puppies alone would not be as affective and artistic as having the husband and wife hold them. Id. at n. 62. In Mannion, Judge Kaplan decided that based on the "total concept and feel" of the photograph and the billboard, that a reasonable jury could find substantial similarity either present or absent. Id. Because infringement could not be ruled out or in as a
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matter of law, Judge Kaplan held that the photograph was sufficiently original to warranty copyright protection and that a fact issue existed as to whether the photograph and the billboard advertisement were substantially similar. The same holds true in this case. Plaintiffs' Photograph is sufficiently original to warrant copyright protection and a genuine issue of fact exists as to the "substantial similarity" between Plaintiffs' Photograph and Defendants' "Precious Cargo" sculpture. As such, Defendants' Motion for Summary Judgment must be denied. E. Plaintiffs' Actual Damages Cannot be Limited as Proposed by Defendants.

Defendants' have previously filed a Motion for Partial Summary Judgment to bar
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Plaintiffs from recovering statutory damages and attorneys' fees. That Motion is fully
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briefed and pending with this Court. As set forth in the briefing, Plaintiffs strongly urge
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this Court to deny Defendants' Motion for Partial Summary Judgment for the reason set
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forth therein. Notwithstanding this Motion, Defendants' now make the logical leap that
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Plaintiffs only available relief will be actual damages and profits -- and that those actual
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damages and profits should be cut in half or less based on the self-serving statements of
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Defendant Jason Napier and the existence of a Declaration from Jerold Miles that must be
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stricken for the reasons set forth above.
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As set forth in 17 U.S.C. § 504 (B), Plaintiffs must be able to seek their actual
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damages suffered by them and to establish Defendants profits based on their infringement
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of Plaintiffs' protected work. Plaintiffs are able to establish Defendants' profit through
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numerous means--including the updated spreadsheet (albeit with numerous inaccuracies
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and estimates). Under governing law, Plaintiffs should be able to recover 100% of
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Defendants' profits. While Defendants may do their best to attribute profits to other
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factors, those "other factors" must have foundation and be admissible under the rules of
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evidence. They cannot be estimated or manufactured.
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Attorneys & Counselors 14646 N. Kierland Boulevard, Suite 255 Scottsdale, Arizona 85254 Telephone: 480-991-9077 / Facsimile: 480-443-8854

In the case at bench, Defendants' self-serving statement that he has a "unique and recognizable style in sculpting wildlife" lacks credibility and, in and of itself, proves nothing more than his own opinion of his work. Such self-serving statements clearly cannot cause Plaintiffs' damages to be reduced to one-half of Defendant's profits that he made from stealing Plaintiffs' original work. The record in this case also includes a Declaration from Jerold Miles which states that Jason Napier's alleged style caused him to purchase the "Precious Cargo" sculpture. The Declaration of Mr. Miles must be stricken from this record because he was not listed by Defendants as a trial witness and he has now been listed as a trial witness for the specific purpose of testifying about Jason Napier's alleged "unique and recognizable style" as a sculptor. PSOF at ¶ 10.

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Defendants' use of the Miles Declaration places Plaintiffs at substantial 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" versus the style of other sculptors in existence. Furthermore, the Miles Declaration does not contain enough foundational information for him to be able to opine as to Jason Napier's "unique and recognizable style" as a sculptor. Consequently, the record is devoid of factual evidence which can demonstrate as a matter of law that Plaintiffs should be limited to recovering one-half or less of Defendants' net profits. IV. CONCLUSION. Based on the foregoing points and authorities, and Plaintiffs' concurrently filed Separate Statement of Disputed and Material Facts Precluding Summary Judgment, Plaintiffs respectfully request that the Court deny Defendants' Motion for Summary Judgment in its entirety.

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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

CERTIFICATE OF FILING
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Attorneys & Counselors 14646 N. Kierland Boulevard, Suite 255 Scottsdale, Arizona 85254 Telephone: 480-991-9077 / Facsimile: 480-443-8854

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

HYMSON & GOLDSTEIN, P.C.

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

/s/ Danielle Limon

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