Free Statement - District Court of Arizona - Arizona

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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 STATEMENT OF FACTS SUPPORTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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STATEMENT OF UNCONTROVERTED FACTS Defendants respectfully submit the following statement of uncontroverted facts in support of their Motion for Summary Judgment. 1. Plaintiff Kent Dyer is a wildlife photographer who made a living doing

wildlife photography from approximately 1989 to 2000. See Deposition testimony of Kent A. Dyer dated July 29, 2005 at pp. 10-12 and 16, attached hereto as Exhibit 1. 2. Plaintiff Kent Dyer retained Troy Hyde, owner of Animals of Montana, to

assist him in a wildlife photo shoot in June 1995. See Exhibit 1, pp. 30-52 and 55-56 and receipt showing date of photo shoot, Bates numbered DYE253, attached hereto as Exhibit 2. 3. During the photo shoot in June, 1995, Plaintiff Kent Dyer scouted areas for

taking photographs and planned how, when, and where he might shoot a photograph of a mother mountain lion with a baby in its mouth. See Exhibit 1, pp. 35-43 reproduced

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below with emphasis added. Dyer: First of all, I would scout what I would like as a background. So I would, because it was like the biggest part ­ it was not the biggest part but the biggest, grandest; it took up the background so it is, you know, you could have a little or you could have a great big mountain or something ­ so I would look and say that mountain would look very nice as background. Then I would move back from that and I would start searching for a place, like, for the mountain lion. And I would always keep that mountain in the background, whether I was over here, I was over here, I was five miles away or two miles closer. Q. Now, during that time, you were just out there alone?

Dyer: Yes. Q. Okay.

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Dyer: Yes. And I would carry my camera gear on me. So if I happened to see something that I thought might work, I would set it up and look and frame it and I would, you know, pretend like there would be a mountain lion on that rock. And then I would move on to the next one; no, I don't like this because it is in the way, whatever it was, like a log sticking up or a downed tree came, whatever it might be. There are lots of things, you know, didn't look good. I'd say a lot more didn't look good than did. So you just keep going. Then you move around and you hike and you do, you know. And so I hiked around quite a bit. And then I found this rock in the photograph. And it was with the background that I wanted. And it had, you know, trees and depth and just, you know, you could crop a tree into the side so you had even more depth. Because with scenics, you know, if you look at good scenics, there is always something up close and something, say, in the back so you get that depth. Then you stick your subject in there. You go, ooh, that could work very, very well. So I would, I composed the whole thing before anyone else even knew about the spot I was going to use. Q. What do you mean when you say composed?

Dyer: I would set my camera up and I would look through the viewfinder. And I would like, like I said just a few minute ago, I would pretend there was an animal on that rock in my mind. I could picture the animal on that rock with this background and this tree and this much underneath. So I had that already in my, already taken care of the best I could. So then you have to figure, all right, can't just show up, you know, because what if it is like high noon and the sun is blasting down, and that wouldn't look good no matter who
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you were. No matter how good a photographer you were, you couldn't do it. It would look terrible, way too much contrast. So you have to sit there and sit there and pretty much wait for the light, for the sun to move around. Then you watch it. And you just, you want to create an image that is very strong. You just want to have such an artistic ­ I mean there is no doubt that, you know, this is art. This is not, you know, that you are trying to create. And so you ­ me saying "you," me ­ would sit there and just wait for the light to move around, move around. And then when you think it is good ­ and you never know what the next day is going to bring. It could be overcast. It could be raining. It could be snowing, you know, and end all of it, end all of it. You have to pay really close attention. Because that day it was a, like, you know, like lot of summer days in Montana, it was, you know, a fairly clear sky and, you know, it was just bright, so you only have certain times if it is bright or going to be bright that you can take a photograph ­ ...

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So I would wait and I would wait and I would wait for the sun to move around. And I thought, okay, I can use, I can use two different cameras on this. I can use my Canon Eos 1-N, E-O-S, 1-N. And that will be on the tripod. Now, because it is, it is an animal, which sometimes they are very active, if you have a fixed lens, it works best. There is nothing sharper than a photograph with a fixed lens. That means you can't adjust the ­ it is not a zoom. It is fixed like a 300 millimeter. But when something is moving around and doing all kinds of stuff, it is really hard to use a long lens. Because this rock, the big drawback on this rock was that I had to back up about 20, 25 feet, give or take. And it was not flat. It wasn't like setting it up here. ... And I would put another camera on a strap that I would put on my shoulder. And that would have a wide angle zoom on it. Now, if I had my druthers, I would have used a fixed lens and just gambled that that I, because I can always change lenses, and gambled I could get it with that because it is so sharp, I mean so sharp. But because of the terrain, I couldn't get back far enough to use just a 300 millimeter lens and get my scenery in. So I was limited to what I could use. So I had another camera on the strap on my shoulder. And that one had, I think it was, a 28 to 80 zoom lens. So that's mostly a wide angle. So the mountain lion is going to look smaller but there is going to be a lot more of this. And I have used that when I needed to. But those are also good, if a mountain lion quick goes over and does something, you
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can go click, click, click because your camera is kind of ­ So my camera is sitting on this giant studio ball head. And this whole thing weighs a lot. It is this big ball that sits inside this ball holder with a stem that comes up. And your camera fits on that and you can literally move it like this, you know. So you had, you can move it around real fast and easy. And then you can lock it down like that and it sits there. So I would also have a vest on, you know, like you see on TV, yes, the photographers. And I usually kept in that vest around 30 rolls of film. And I would take them out of the little containers so they would all be just rolls of film so I could quick, if ­ my camera would do six frames a second at the time. So if it ran out of film, it would automatically rewind. And as soon as it stopped, I would pop it open, pull it out, stick it in one pocket and slam the next one in and bring it over, close the bag and I am ready to go. It takes literally seconds. So I had all this with me and planned out the day before. Q. Okay.

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Dyer: And then, you know, I was watching the light, watching the light. And I figured out that morning was definitely the best time for this site here for this background. Because it is not just the light on the animal. That's very, very important. But it is also the light on the background. It is the light on the foreground, because if one of them is just blasting out, and this may be perfect but this may not be perfect, then you kind of defeat your whole purpose. So it is really important to try and get, like, nice even light on everything, which is quite a feat at times. The animal trainers from Animals of Montana, including Troy Hyde, transported a mother mountain lion and baby mountain lions to the site selected by Plaintiff Kent Dyer and assisted in manipulating the animals to present themselves within a scene that Plaintiff Kent Dyer had scouted, envisioned, and planned. See Exh. 1, pp. 48-52, reproduced below with emphasis added, and Deposition of Troy Hyde, pp. 23-49, attached hereto as Exhibit 14 portions of which are reproduced below with emphasis added. Q. So what did Troy do then?

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Dyer: Well, then Troy goes over and he takes the baby out of the pen, or I mean out of the carryall. And he takes it and he puts it like towards the end of the rock there, you know, towards the ­ and the mom is sitting back here of them, out of the photograph. And the baby is there. They are not walking yet, so ...
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Q.

And who has got ahold of the mother?

Dyer: Shane has ahold of the mother. Q. Okay.

Dyer: Because Troy is the trainer. Shane is like the apprentice, the helper, the go get this for me, run back to the truck real quick, that type of thing. And it is amazing how fit these guys are running around the mountains. And so we are ready. Everything is ready. And I said, okay, we are ready to try this. And so he puts the baby on the end of the rock there. And the mom is off watching. And she is like, you know. And Troy steps back behind the tree in the photograph, back where he says: Am I out of your way? Yes, you are out of my way. And Shane is back way out of the way. And they let the mountain lion loose, the momma. And the momma runs over, looks at the baby, oh, you know, goes over and picks it up, because for some reason they don't like their babies next to dropoffs. So we used this technique before. And so it runs over. Q. So you think, I am sorry, so you think she picked the baby up because ­ Dyer: Well, because it was not only in a foreign place to her and she still is nursing and everything else, but also because it is on a rock with sides that go down, and they will, you know, like it wandered over there, and pick it up so it is safe in the momma's mouth. Q. So she was maybe protecting it?

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Dyer: I ­ well protecting, retrieving, you know. I think protecting is, no, I don't think ­ protecting it from itself maybe, but I think just instincts. You know, protecting to me seems like a little angry. There is no anger whatsoever. So she picks it up and then she looks at Troy since Troy is her master. And he takes a piece of chicken out of his nail pouch and tosses it on the rock in front of him. And she sees it. She is like, oh, and she gets ready and she jumps over to that and takes the piece of chicken. Now, in an ideal world that would work the first time. But, you know, first time, well, I don't know which was first, second, third or fourth. I know this was last. Q. How many times ­ so that same procedure of setting the baby on the end with the mother away was done more than once?

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Q.

And how many times?

Dyer: A guess, only a guess, at least a dozen times at least, probably more, because it took longer than, you know ­ I was a little worried about the light, you know. But, you know, you just have patience and keep going because there is nothing you can do about it. So one time she picks the baby up. Oh, look it, perfect; backwards, so you get the back ends. No, that didn't work. Another time she is, like, let go of the baby and run, jump off and get the chicken. No chicken for you. But you can't take it away once she has got it, you know. After each one he would say good and all that. It is amazing, they purr a lot, very loud. And they put it back on, put her back on the chain, take the baby, put her back on the chain, walk her back up to the spot again, walk the baby up there, and then do it again and again and again. And there was times when she would get up, run, jump without the baby; no, I didn't take any, you know. When she would run, I thought it would be cool to get her jumping off the rock. But with that slower film, ISA 100, or ISO now, she was pretty much of a blur. So it was a stationary photograph. Finally she ­ you know, you never know, could be the first, but if it is not the first, it is always the last time that she does it, that she walked over to the baby, picked it up in her mouth, saw the piece of chicken, got ready to jump, click. One negative, all I have, even six frames a second, one negative is all I have of her jumping off, getting ready to jump.

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Deposition of Troy Hyde: Q. You mentioned earlier that you try to accommodate the artist or photographer by setting things up or trying to make what they want happen but that it doesn't necessarily mean that it is going to happen after they gave you some vision of how they want their photo to look. What did you mean when you said it doesn't mean it is going to happen? Hyde: I could take a mountain lion, and her name is Kissy, I could take Kissy down nine out of ten times and the tenth time she would basically lay there and basically say I am not doing nothing, I am not getting up, I am not walking to get that cat, I am not walking to get my cub. They get, they are so in tune to their own environment that sometimes the natural instinct is to go I know you guys aren't going to hurt the cubs so you can have them for all I care, and sometimes they just don't work. And they are wild animals so you can't make them work. I mean it is just if they choose not to, they choose not to. But that happens very rarely.

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Q. Okay. Would it be fair to say that you didn't pose the mother mountain lion? And by pose, I mean you didn't put her in that spot and tell her to stay or put the baby mountain lion in her mouth and tell her to say? Hyde: I wouldn't tell her to -- if she picked up a baby mountain lion and was walking from A to B and in mid stride he wanted me to have her stay, I could do that. To lay her down with her cubs and tell her to stay, I could do that. But to have her pick up a cub and tell her to stay, I could slow her down, way down to almost not even really be walking, but you just don't stop them. She would have to have, I guess what I am trying to say, from a maternal instinct she would have to have it and then she would probably follow commands from there. But to have her stop literally when she is trained to bring her cub back to the other cubs to get them all back, to have her stop would be difficult at best. Q. So is it fair to also say that you didn't position that baby mountain lion in her mouth personally, that the mother mountain lion picked it up? Hyde: No. That mountain lion would have been positioned. And what I mean by that, if that cat is coming at camera, and just imagine an animal coming toward you, and it is maybe just angling off to your left, okay -Q. Okay.

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Hyde: -- you want that cub's head facing camera. That means that I have to have that cub, as I am looking at her from behind, that cub would have to be laying on the ground from left to right so that, when she picks it up, it is right to left. So no, that wouldn't be fair to say, because they are placed. Q. Okay. But you didn't place the baby in its mouth?

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Hyde: No, no. She put it in her mouth by herself. I just determined what direction I want to angle. Q. To lay the baby at?

Hyde: To lay it on the ground so that when she does pick it up, that we have basically determined how she picks it up. Q. Okay. But once she picks it up, you didn't have any control over how she hung onto the baby mountain lion in her mouth or what she did, did you? Hyde: I don't have any control as to how she hangs onto it, but I do have control as to how long she hangs onto it. Q. Okay.

Hyde: And that, that's a fine line, too, meaning that I can have
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her hang onto it. She may hang onto it three minutes sometimes and other times I might just tell her, our signal would be easy, easy, and she would just stand there and look at you. She just might put her head down and spit it out of her mouth and lay down. That might happen in ten seconds. But for the most part she would hang onto it for enough period of time to have a still photographer who was organized and ready to go, the time allotted to wrap off 36 photos. Q. Okay.

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Hyde: Which, with the cameras that Kent had in those days even, he could still take eight pictures in like -- or 36 pictures in like 8.6 seconds.

Q. In terms of the animals that you use, they are actually born in captivity, is that right? Hyde: Correct. Q. And in your, in your opinion, Troy, do the animals behave differently, a mountain lion born in captivity versus a mountain lion born in the wild? Hyde: I would have to say yes to that, but not in a species orientated way, if that makes sense to you. Q. Can you explain that?

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Hyde: Yes. Species orientated means a wild mountain lion and captive mountain are still a mountain lion. The instinctive way that they walk, the instinctive way that they look is the same. But a mountain lion in captivity can become lazy and not want to do certain things certain ways. And that's why we train for that. You know, some mountain lions walking down a hill with a, you know, deer carcass out in front of it, is he stalking a deer? A mountain lion in captivity sometimes can have a tendency to be kind of walking down the hill like he is just going for a walk. And a wild mountain lion would be down low, crouched and staring and kind of locked in on it and moving real slow, trying to get in on it. And those are things that we use different tools and different things to make them stalk and stare to get that wild look. So that's what I mean by within the species they can be different, but I think they are, the way that they react around people is the same. I have a couple cats that I have had even when Kent was around. I have got one like 12 years old now. He was around when Kent was around. And he is not a mountain lion that anybody would think about petting, not even for a second. But will he do the work I want him to and act like a wild
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mountain lion, and he is kind of high strung and crazy and do just about anything? Yes, he will do that, but he is not a pet. So they are very different in the nonspecies way, meaning how they were brought up in captivity, what the dos and don'ts are. The instinct of things are all there. Q. So a mountain lion in captivity can almost in a sense then act, I guess can act differently than a mountain lion who lives in the wild? Hyde: Yes. He would have to. A mountain lion in captivity, the groceries are free. And a mountain lion in the wild is totally survival. I mean he tries every day to get a meal, get something to eat. He might have to travel miles to do that. So a mountain lion that is in captivity is usually fed pretty well, pretty content to go ahead and do some of the things that we ask them to do. We might have to reward them with food rewards from time to time to get them to do different things. And that's what it is based on. They are not going to run and fetch a ball for you like a dog would to make you happy. They just don't do those kinds of things. Q. So will they -- and you said they sometimes will walk differently, crouch differently, that type of thing as well, the mountain lions? Hyde: Yes. Sometimes, if you were trying to get a mountain lion crouching or even a mountain lion holding a cub a certain way, I mean if she just kind of got her head droopy, meaning downwards, and her eyes, say she is looking at me, I mean that is not natural for a mountain lion to be holding a cub in her mouth and having her head up with the eyes toward the ground. She wouldn't be looking at the ground. She would be scanning the horizon to see if there is any movement around her, especially with small cubs. The only reason she would have one in the mouth would be moving them from one den to another. Q. Troy, how much control do you actually exercise over your animals during a photographic shoot like the one with Kent Dyer? In other words, do you have no control over them, a lot of control? How would you describe it? Hyde: In a percentage rating, I would say that from 100 percent down to zero, we probably are in control of how they walk, how they look, how they hold their head, where they look, ears forward, ears back, snarling, lying down, standing up, it is about 85 percent. So what I mean by that, let's just say you were a photographer and you say, hey, can you get that cat to snarl. I go sure. So I get it to snarl for you. And you want it laying down and snarling. And it does two or three snarls. And the cat gets tired and jumps to its feet. So it is already on all four feet. You might say, hey, gee, can you have them walk for me with the head up just looking alert, or better yet, can you have him walk for me to be in a stalk. Yes,
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we can do that. The cat is already on its feet, so I didn't make him do that. But we have to do other things to make him see something that he can't really tell what it is which will cause him to go into a stalk, or something that looks like a deer that looks real that will cause him to go into a stalk. So we can manipulate those things. But I think as far as control we have about 85 percent. Q. So the animals can be manipulated by you?

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Hyde: They are very much manipulated, just like the carrying picture. You know, if you take three baby mountain lions and the eyes are just open so they are eight to ten to twelve days, the motherly instincts are high. So if I put all three cubs, take momma up the hill, put her on a ledge, put all three cubs with her, she won't go very far. She is going to stay right there because her anchor to the world is those cubs. Then, if I come up, she will look at me and she might meow to me, or whatever. I come up and pet her. She starts purring. I slip around the back side of her, pick the cub up and hand it to another trainer. And that trainer kind of cups his hand in its mouth and takes off walking. She doesn't know one of the cubs are missing because I am standing there petting her. All of a sudden, I stand back. When the other trainer gets down the hill, he sets that cub down and walks away. The minute he leaves that cub, I stand up and walk away from her. She goes to licking the kittens. And the one that is down the hill starts to squawk. She looks. Boom, alert. Looks down the hill like what is that. The next squawk she has got it detected and she is off trotting in that direction to pick him up and bring him back. I just manipulated that. I manipulated her to get up, go down there and get that cub and bring it back because she wants to keep them all grouped up. Keeping in mind they are very young, she is going to do that. Now, if they were 14 weeks old, you couldn't do that anymore because in a captive situation she is not going to protect like a wild mountain lion. She sees me pick them up. She is like big deal, who cares. But that is when they are a little older and a little faster. They will venture out away from her quite a ways. But if she moves, they usually find their way back to her. So you can -so I guess as far as the baby cubs go, we manipulated that whole shoot very -- it was highly manipulated to make things work the way that Kent needed them to work. Q. You mean for the shoot, where he took the photograph in the shoot here? Hyde: Where the cub is in her mouth?

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Hyde: Yes. That was very manipulated. That was manipulated down to the angle she picked it up to how far she carried it, what way she turned her head when she looked, was her ears forward or back, was she just backing up turning her
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head to the left or right. All that was manipulated. Q. And when you say that, what you mean is that wasn't, that wouldn't necessarily just be naturally what the mountain lion would do? Hyde: Well, I can't say that it wouldn't be natural because it is natural for them to pick it up, you know, if they were moving it from den to den in the wild. Q. I just mean in that sequence.

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Yes.

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Hyde: No. That sequence, I mean, again, you could really say anything is natural I guess. But the bottom line is he wanted a specific look, a specific direction and a specific spot with a specific background that is very manipulated. Now, could it happen naturally? Yes. Would it happen naturally in front of a photographer? No. Chances would be one in a billion.

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Plaintiff Kent Dyer obtained a federal copyright registration number VA1-

180-526 for a group of photographs which included a photograph entitled "Mother Mountain Lion with Baby in Mouth" which was taken during the June 1995 photo shoot. See Plaintiffs' Verified Complaint, at ¶ 15 and Exhibit "A" (Certificate of Copyright Registration) attached to Plaintiffs' Verified Complaint, herein incorporated by reference. 5. Defendant Jason Napier is a sculptor, and has sculpted wildlife pieces for

over the last ten years. See Deposition of Jason Napier attached hereto as Exhibit 3, p. 56. Jason Napier's wildlife sculptures have their own distinct and recognizable style with sleek, smooth, rounded lines and surfaces that are used to express the natural anatomy of the wildlife animals. See photographs of Jason Napier sculptures attached hereto as Exhibit 15. 6. Defendant Jason Napier first met Plaintiff Kent Dyer at an art show in

Carefree, Arizona in 1998. See Deposition of Jason Napier, Exhibit 3, p. 13. 7. Jason Napier spoke with Plaintiff Kent Dyer about using the "Mother

Mountain Lion with Baby in Mouth" photograph as a reference to create a bronze
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sculpture at the 1998 Carefree Art Show. Defendant Jason Napier also spoke with Plaintiff Kent Dyer about using his "Mother Mountain Lion with Baby in Mouth" photograph as a reference to create a bronze sculpture at the 1999 Carefree Art show, the 2000 Carefree Art Show, and the 2001 Carefree Art Show. See Responses to Plaintiffs' First Set of Non-Uniform Interrogatories to Defendants, specifically response to NonUniform Interrogatory Number 17, attached hereto as Exhibit 4. 8. Defendant Jason Napier's access to Plaintiff Kent Dyer's photograph is not

denied, but the facts and circumstances surrounding the access are disputed. See Defendants' Response to Plaintiffs' First Set of Non-Uniform Interrogatories to Defendants at Interrogatory Number 16, attached hereto as Exhibit 4, and Plaintiffs' Response to Defendants' First Set of Non-Uniform Interrogatories at Interrogatory Number 3, attached hereto as Exhibit 5. 9. Defendant Jason Napier used a number of reference materials to create the

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life-size and maquette versions of a sculpture entitled "Precious Cargo" in 2001. See Responses to Plaintiffs' First Set of Non-Uniform Interrogatories to Defendant at Interrogatory Number 6, attached hereto as Exhibit 6, printouts from a CD having Bates number NAPIER0011, attached hereto as Exhibit 7, and Deposition of JasonNapier, Exhibit 3, pp. 25-27. 10. Plaintiffs produced a color copy of a "mini" photograph of Plaintiffs'

"Mother Mountain Lion with Baby in Mouth" photograph as Bates number DYE001, a copy of which is attached hereto as Exhibit 8. 11. Defendants have produced photographs of Defendant Jason Napier's

sculpture entitled "Precious Cargo" as Bates numbers NAPIER001-003 where Bates number NAPIER001 and NAPIER003 represent the maquette version of the "Precious Cargo" sculpture and NAPIER002 represents the life-size version of the "Precious Cargo" sculpture. Color copies of Bates numbers NAPIER001-003 are attached hereto as Exhibit 9. Although photos of the "Precious Cargo" sculpture are in evidence, the Court is invited and encouraged to view the life size version of the sculpture located in the
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Fountain Hills Community Center Courtyard in Fountain Hills, Arizona and the maquette version currently located at the office of Snell & Wilmer at One Arizona Center, 400 East Van Buren, Phoenix, Arizona 85004. The maquette version is available for immediate delivery to the Court at any time by calling defense counsel Laura Zeman at 602-382-6377. 12. Plaintiff Kent Dyer filed a lawsuit against Defendant Jason Napier for

copyright infringement on February 26, 2004 seeking actual damages and profits, statutory damages and attorney's fees. See Plaintiffs' Verified Complaint at Paragraphs B, C and H (Relief Requested). 13. Defendants filed an Answer to Plaintiffs later filed Verified Complaint in

March 2004 and an Amended Answer on November 24, 2004. See Defendants' Amended Answer filed November 24, 2004 herein incorporated by reference. 14. Defendants sold both monument and maquette versions of the "Precious

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Cargo" sculptures from 2001 until they agreed to stop casting and creating and/or selling the sculptures on April 16, 2004, in an effort to settle and compromise Plaintiffs' claims that were brought against Defendants. See Stipulation for Issuance of Preliminary Injunction dated April 16, 2004 herein incorporated by reference. A Preliminary Injunction in accordance with the Stipulation was later entered by the Court. See Court's Order dated April 19, 2004 herein incorporated by reference. 15. Plaintiff Kent Dyer himself identified several differences between his

photograph entitled "Mother Mountain Lion with Baby in Mouth" and Defendants' "Precious Cargo" sculpture. See Exhibit 1, pp. 85-90, reproduced below with emphasis added. Q. Kent, do you recognize the photographs in Exhibit Number 9? Dyer: Yes, I think so. Q. These are photographs of Jason Napier's sculpture that I believe he identified as being taken by somebody, either his wife or himself, and a photographer in his deposition. Do you remember that?
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Dyer: I do. Q. If you would, look at Exhibit No. 8, which is a copy of your photograph ­ Dyer: Okay.

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Q. -- and Exhibit No. 9, which is, which are a number of photographs of Jason Napier's sculpture. Could you tell me ­ I am going to back up one second. I just want to confirm that this No. 8 is the size photograph that Jason, that you allege Jason purchased from you. Dyer: Yes. ... Q. Okay. Looking at Exhibit Nos. 8 and 9 again, do you think the paws in the photo in Exhibit No. 8 and the paws in the sculpture, Exhibit No. 9, of the mother mountain lion look the same? Dyer: I think it is a really bad photograph and it is really bad lighting. So I think some of these paws do look alike. It depends what bad angle you pick out of all this. This is not a monument. Q. Okay. If you are ­ are you wanting to look at the monument size sculpture? I am not sure what ­ Dyer: I have never seen this in person.

12 13 14 15 16 17 Q. 18 Dyer: And these are not good photographs. 19 Q. 20 21 22 MR. LONN: Why don't you reference by Bates No. page. 23 24 25 26 27 28
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Okay.

What aren't good photographs?

Dyer: They are just, you know, I mean it is bad lighting. I mean that looks like a block in this photograph, her feet. Here it doesn't look like. It looks likes she has, you know ­

THE WITNESS: I am sorry. Whatever, I guess this says NAPIER001. And the feet look like a block. BY MS. ZEMAN: Q. Okay.

Dyer: And NAPIER002, you can see that they are not. They have, like toes.

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Q. 8?

Okay. And what about the photograph in Exhibit No.

Dyer: What about it? 3 4 5 6 7 8 9 10 11
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Q. Do you think that looks similar to or different from the paws in either NAPIER number 2 or number 1? Dyer: It looks similar to number 2. Q. Okay.

Dyer: Do you have one of the monument? Q. I don't have one with me. A small one you mean?

Dyer: A photograph, a nice photograph. Q. These are the photographs I have of it.

Dyer: Okay. Because they are different. Q. You believe that what it looks like is different than what you see in the photograph? Dyer: Yes.

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Q. 15 16 17 18 19 20 21 22 23 24 25 26

Have you ever seen a smaller version?

Dyer: I am talking about ­ I have never seen a small version, no. Q. Okay.

Dyer: No. And I don't know in person what it looks like. Q. Okay. But looking at what you are seeing in NAPIER number 1, do you think that the momma's paws in those photographs look similar or different from the ones in Exhibit No. 8? Dyer: You know, with this really bad photography and bad printing, of course they look different in that because it is just bad. There is no detail. Q. Okay. Looking again at the photograph in No. 8 and photographs in Exhibit No. 9, do you think the placement of the momma mountain lion's paws on the rock in the photo as Exhibit No. 8 are exactly the same as the placement of the momma's paws on the rock in Exhibit No. 9? Dyer: Well, not exact, no. They are not exact.

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Q. Okay. Looking again at Exhibit Nos. 8 and 9, do you think the same lines ­ for example, I am looking at and point
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to the first page of Exhibit 9, the hind quarter. Do you see where I am pointing to a line in the hind quarter here? Dyer: This one? Uh-huh.

3 MR. LONN: On ­ 4 THE WITNESS: 5 BY MS. ZEMAN: 6 7 8 Dyer: Which lines? 9 Q. 10 Dyer: This line around the top here? 11 Q.
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On NAPIER200 ­ I mean 002.

Q. Correct. Do you think the lines in the sculpture in Exhibit No. 9 are the same as the lines shown in the photograph in Exhibit No. 8?

For example, the line you are seeing here and this.

The hind quarters.

12 Dyer: The top here? 13 Q. 14 Dyer: This line? 15 Q. 16 Dyer: Because it looks very, very close. 17 18 19 20 21 22 23 24 25 26 Dyer: The tail? 27 Q. 28
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Correct.

No, I am sorry.

Q. Right here, this line here, this line that goes down here. Dyer: There is a little difference in that, that line. Q. Looking again at Exhibit Nos. 8 and 9, do you see the tail, I am sorry, yes, do you see the tail on the momma, I am sorry, in the sculpture on Exhibit No. 9? Dyer: I see some with a tail and I see some without a tail. Q. On the momma?

Dyer: Yes, on the momma. Q. Okay. Would you say that you can see the tail on the momma in NAPIER Bates Nos. 2 and 3?

Yes.

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Dyer: Yes, I can see the tail. Q. Can you tell me if you can see the tail on the momma lion in Exhibit No. 8? Dyer: No, you can't.

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Q. Okay. Looking again at Exhibit Nos. 8 and 9, do you think the shading or lighting shown on the momma in the photograph Exhibit No. 8 is the same as that on the momma in the sculptures shown in Exhibit 9? Dyer: Well, here they messed up a little bit and actually took a photograph with a shadow, that, in NAPIER002, that does kind of match up with Exhibit No. 8. Q. And any other photographs?

Dyer: The rest of them are in direct bright sunlight so there wouldn't be any shadows whatsoever. Q. Okay. Looking again at Exhibit Nos. 8 and 9, do you think the baby's front paws in the photograph in Exhibit No. 8 are in the same position as the baby's paws in the sculpture shown in Exhibit No. 9? Dyer: The paws are a little different. Q. How are they different?

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Dyer: They seem to be, one is slightly overlapping the other one. Of course, this one is slightly overlapping in No. 8, also. So I would say they both overlap there. They block out part of it. Q. Would you say that the paws on the baby lion ­

19 20 21 22 23 24 Dyer: Okay. 25 26 27 28
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Dyer: Well, can I ask you something? How come these are different than these paws here? Q. These are two different sculptures. One is a monument size. The one you are looking at in NAPIER number 2 and the maquette version or smaller version are the ones that are shown in NAPIER numbers 1 and 3. So if we look at NAPIER number 2, I am sorry, yes, Bates No. that says NAPIER number 2 ­

Q. -- would you say that the baby's paws, front paws in that Bates No., the photographs that are associated with that Bates No. are different from or similar to the baby's front paws in Exhibit No. 8? Dyer: I would have to say it depends which one of these you
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look at. Because the second one to the right, yes, that looks pretty close. Q. Second one to the right. Okay. Let's look at the one you are talking about. Is it the one I am pointing to, the second photo to the right? Dyer: Right.

5 Q. 6 Dyer: Uh-huh. 7 8 9 10 11
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On NAPIER 002?

Q. Would you say, looking at that photograph and the one in Exhibit No. 8, that the baby's front paws in No. 8 are sticking out further than they are in the photo that is second from the right in NAPIER No. 2? Dyer: Sticking out further? The top? Are you talking about the bottom? Q. The front paws. I am talking about the front paws here. Dyer: Okay. They are both sticking out. I think you are taking teeny little pieces, just tiny little pieces. The fact is he out and out stole my artistic expression. He can change it a little bit, but still an out and out theft of my artistic expression. Q. Okay. Looking again at Exhibit Nos. 8 and 9 ­

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Dyer: Yes. 18 19 20 21 22 23 24 25 26 27 28
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Q. -- do you think the baby's back paws, these would be the hind paws in the photograph Exhibit No. 8, are in the same position as the baby's paws shown in the sculpture shown on Exhibit No. 9? Dyer: Okay, No. 9. Q. Sorry.

Dyer:. I get to take my pick? Q. You are right, there are several photographs to look at.

Dyer: All right. Repeat the question, please. Q. Do you think the baby's back paws in the photograph in Exhibit No. 8 are in the same position as the baby's paws, let's split it up, shown in NAPIER number 2? Dyer: No. The paws are a little different.
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Q. Do you think the baby's back paws in the photograph in Exhibit No. 8 are in the same position as the baby's paws in the sculpture shown in NAPIER numbers 1 and 3. Dyer: No. They are in a little different position. 16. Ms. Jane S. Kinne was retained as an expert for Defendants and opined that

Defendant Jason Napier's sculpture did not infringe Plaintiff's copyrighted photograph. See Defendants' expert witness disclosure statement and expert's report attached hereto as Exhibit 10. In addition to identifying differences between Plaintiff Kent Dyer's "Mother Mountain Lion with Baby in Mouth" photograph and Defendant Jason Napier's "Precious Cargo" sculpture in her report, Ms. Kinne also identified such differences in her deposition. See Deposition of Jane Kinne attached hereto as Exhibit 11, pp. 86-87 and 9293 reproduced below. Q. I guess I need to know from you ever difference that exists between the sculpture and the photograph? Kinne: All right. The rock that the mountain lion is perched upon is a very large glacial rock covered in lichen here. This is a highly polished, idealized rock in the sculpture. The back hind quarters of the mountain lion in the photograph are muted, you do not see the musculature that well. They are overemphasized perhaps in the sculpture, for artistic reasons. You do not see the tail at all in the photograph. You clearly see the tail in the sculpture. The little kit has legs curved in the sculpture. They are more extended in the photograph. You barely can see, there is a slight shadow of the tail of the kit. It's very obvious in the sculpture. The sculpture relies on where it is placed for background, whereas there is a total scene behind the photograph. I'm not sure that's everything, but that's a good bit of it. Q. In your report you say ­ there are a couple of different places ­ that wild creatures themselves are not copyrightable essentially because they exist in nature. Is that fair? Kinne: They exist in nature and they are common to all of us.

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Q. Now, we can agree that Mr. Dyer's photograph, I hope we can agree, that Mr. Dyer's photograph that we have as Exhibit 3 there, includes all sorts of surroundings, like trees, sky, the mountain, that sort of thing? Kinne: Absolutely. Q. And because those items are included in there, I
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thought you told me that you felt those were elements that made the photograph protectable or copyrightable; is that correct? Kinne: And the way Mr. Dyer chose to use those elements. Q. Okay, that's fair, I think that's accurate in terms of what you said. My question to you, Mr. Napier, you understand he copyrighted his sculpture at least it has the copyright symbol on it? Kinne: Correct. I saw it when I viewed it.

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Q. If you look at Mr. Napier's sculpture it doesn't have any trees, mountains, sky, as part of the sculpture; does it? Kinne: Not as part of the piece of art, no. Q. So then by the terms you've outlined in your report, how was Mr. Napier's sculpture copyrightable, then, if it's just a mountain lion with a kitten in its mouth and nothing else? Kinne: It's not a representation of an actual mountain lion. It's a highly idealized artist's conception. He has altered some of what might appear in a natural living mountain lion. Q. So are you saying that Mr. Napier did was change the realistic mountain lion into something that's highly stylized such that it is properly protectable? Kinne: Highly stylized, that's correct. It is his interpretation of a mountain lion. 17. Defendants' expert Ms. Kinne also opined on whether or not Defendant

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Jason Napier's "Precious Cargo" sculpture was substantially similar to Plaintiff Kent Dyer's "Mother Mountain Lion with Baby in Mouth" photograph. See Exhibit 12, pp. 8790 and 107 reproduced below. Q. Is it your opinion that notwithstanding the image in Mr. Dyer's photograph that the sculpture is not substantially similar to the photograph? Kinne: That is correct.

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Q. And that's based on the differences that you've noted in your report? Kinne: Correct. Q. So really I guess what the gist of your opinion is, if I'm understanding your testimony here today correctly, that even though Mr. Dyer's photograph has valid ­ is
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copyrightable in that the image of the mountain lion with the baby in it's mouth is protectable, you're saying that the sculpture is just simply not substantially similar? Kinne: Correct. Q. Is that right?

Kinne: That is correct. Q. Is it your view that the photograph, Exhibit 3, which is Mr. Dyer's photograph, even though it's only taken from one angle ­ let me try to ask the question in a more intelligible way. Mr. Napier's sculpture, can we agree, can be viewed from numerous angles that the photograph doesn't provide us with? Kinne: Correct. Q. Okay. Now, for instance, in the photograph you really can't tell whether the mountain lion has a tail or not, based on the angle of Mr. Dyer's photograph? Kinne: That is correct. Q. Is that right?

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Kinne: Correct. Q. But you can tell that the mountain lion has a tail if you look from a certain angle on Mr. Napier's sculpture? Kinne: Correct.

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Q. So if I understand you correctly, you're saying that angles and views that aren't available in the photograph but are available on the sculpture can create a dissimilarity such that the sculpture is different from the photograph? Kinne: Yes, I am saying that. Q. Can you explain to me why you think that's a reasonable view, given Mr. Dyer's image that he was trying to protect with this image in Exhibit 3 and no other angle? In other words, shouldn't we be limiting our scope of analysis on substantial similarity to this precise view and no other view? Kinne: I don't think you can. The whole feeling of that sculpture ­ and believe me it is overwhelming when you see the real thing ­ depends on viewing it as a whole. That's the beauty of sculpture over certain other art forms. Q. Let me ask you this, what is added to the experience of this image by being able to look at this sculpture by looking
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at the rear end of the mountain lion versus looking at the image that Mr. Dyer created? Kinne: Power. Among other things, the power of the animal is so much greater, the strength, the feeling in the sculpture that you know that animal was built to pounce on things. Q. And you don't think that's easily ascertainable from Exhibit 3 from the photograph? Kinne: I don't. I think Mr. Dyer caught the animal sort of bracing itself, it may be due to being, "obeying a trainer," but those legs are nowhere near as braced onto the rock, and that feeling that he could spring forward in an instant. ...

9 10 11 Kinne: That is correct.
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Q. In your opinion, would it be accurate to say that while a whole work may be copyrighted, it does not mean that every element is copyrightable?

12 13 14 15 16 17 18 19 20 21 Kinne: I do not. 22 23 24 25 26 27 28
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Q. In your opinion, would it be accurate to say that before you get to applying a substantial similarity test or ordinary observer test, you must first determine what the copyrightable elements or protectable elements are of a work? Kinne: Yes, you must. Q. In your opinion, what are the copyrightable elements in Mr. Dyer's photograph? Kinne: I would say that they are the lighting, the scene, the entire scene, the angle, and because of making those choices, his choice of film and lens. Q. In your expert opinion, do you believe that Mr. Napier copied those protectable elements in creating the Precious Cargo sculpture?

18.

Defendants' expert Jane Kinne also distinguished the Rogers v. Koons case

by identifying the copyrightable elements in that case and how the creation of the sculpture in the Koons case was different from the present case. See Exhibit 12, pp. 107108 reproduced below. Q. In Rogers v. Coons, would you say that there are copyrightable elements of the Rogers photo that were copied in the Coons sculpture?

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Kinne: Yes, indeed. Q. Can you identify what the elements were, that you believe are the copyrightable elements? Kinne: It was the decision to place the puppies in the laps of the owners; to place the owners on a bench he did; to light it the way he did; to treat it as a straight-on photograph rather than a high angle or a low angle. Exhibit 12, pp. 83-84, reproduced below. Q. Obviously in the Rogers v. Coons case it didn't really matter to the trial court or appeal court that you could walk behind the string of puppies sculpture and see the back of the head of the husband or wife or that you could walk around it, that issue didn't seem to be significant? Kinne: The back of that sculpture was not a completed threedimensional thing, it was more like a frieze. It was thick, but ­ Q. Nevertheless you could walk around it, correct?

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Kinne: Correct, you would see nothing but the flat of the wood. Ms. Kinne also opined on the scope of copyright protection regarding the subject matter of the instant case compared to the copyright protection afforded in Rogers v. Koons. See Exhibit 12, pp. 115-116 reproduced below. Q. In your opinion, would it be accurate to say those things that occur in nature including an animal and an animal's instinctual response have very narrow copyright protection? Kinne: That is what I'm saying. Q. And in order for there to be infringement in the circumstances is it your opinion that there would have to be identical copy? Kinne: Yes, I would say that it would require mirror image. Q. Earlier on, there were some questions about manipulating the mother mountain lion in this case to get it into the pose in which it was in Mr. Dyer's photograph. Would you say there is a difference in the degree of manipulation that took place in the mother mountain lion in the ??? farm setting in comparison to the posing of the animals and the people that took place in the Coons case? Kinne: Oh, I would say very definitely.
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posing an animal, even a domestic one, except under rare circumstances, you can't walk up and say now you sit here and hold this puppy this way, so forth. You hope the animal is trained to some bait or something and will respond as you've had it respond repeatedly. But you can't go up and move its legs around. 19. Plaintiffs' expert Jeffrey Tritel also identified several differences between

Plaintiffs' "Mother Mountain Lion with Baby in Mouth" photograph and Defendants' "Precious Cargo" sculpture. See Deposition of Jeff Tritel, attached hereto as Exhibit 12, pp. 39-51 reproduced below with emphasis added. Q. BY MS. ZEMAN: What I'd like you to do, Jeff, is put the Dyer photograph which is Exhibit 4 in front of you and then I want you to go ahead and take, of the photographs in Exhibit 5, first take the life size photographs, I'm sorry, photographs of the life size version which is Napier 0002. So we're going to look a1 those two things together right now. Tritel: All righty. I've got that.

12 13 14 15 Tritel: Right. 16 17 18 19 20 21 22 Tritel: Correct. 23 24 25 26 27 28
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Q. Okay. In your report the very first part of it it states that - you cite, I'm sorry, obvious differences between the Dyer photo and the Napier sculpture.

Q. Number one, the kitten legs are higher in the sculpture. So can we confirm that ­ Tritel: Yes. Q. ­ that's the case when you look at ­

Tritel: Yes. Q. And, secondly, the sculpture is not naturalistic and is stylized with unnatural sharp curves and angles, correct?

Q. And next the rock base bears little resemblance to the rocks in the Dyer photo? Tritel: Yes. Q. Is that your statement?

Tritel: That was my statement. Q. Does it bear any resemblance at all if you look at the
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Dyer photo and then you look at the photos of the life size sculpture? Tritel: Yeah, if you look right between, if you look between the paws, if you look carefully at this photo. Q. Okay.

Tritel: The, the rock that the lion is standing on, it has a very clear, the right-hand face of the rock is very well-defined as having a sharp angle between the paws because that face is in extreme shadow and the adjacent face to the left is not. So obviously they come together in a hard edge. Q. Okay. But ­

Tritel: And ­ Q. ­ would you agree that the edge ­

Tritel: And in the sculpture there is that hard edge that exists between the two paws, the two forepaws of the cat. Q. Would you agree that the edge shown in the sculpture is much sharper and more defined than any edge shown in the photo? Tritel: I will agree that the edge is smoother.

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Smoother in which?

Tritel: In the sculpture it is smoother. It has been simplified. The edge in the, on the rock is, is rougher and is not in a geometrically right line but it is a hard edge. Q. Okay. If you could look at the second photo from left and Napier Bates number 0002 ­ Tritel: Yes. Q. ­ are the momma mountain lion's front legs in the sculpture positioned exactly the same as the momma's front legs in the photograph? Tritel: They're very close. MR. LONN: One thing I think we need to point out is we're, some of these are of the smaller version, some are of the larger version. MS. ZEMAN: Correct. I'm going through one at a time and right now we're just looking at the life size version. So we're looking at Napier 0002 which is the life size version. MR. LONN: I just want to -- we've had some discussion from
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the other witness about some of the differences between the smaller version and the larger version. MS. ZEMAN: separately. Right, and I'm going to go through each

MR. LONN: Okay. Q. BY MS. ZEMAN: Okay. Jeff ­

Tritel: I mean, the legs - what? Go ahead. Q. I'm sorry, are the momma mountain lion's front legs in the sculpture identical to the way they're positioned In the photograph? Tritel: The mother mountain lion's legs appear to be slightly further apart. However, if you look at her right foreleg, the one that is closest to us, you can follow the articulation of the leg through the elbow down to the wrist and the way the, the paw cants off to the left is very, very close. Same, same situation with the left paw. So even though the legs are slightly further apart, the position I would say is very, very close. Q. Are the momma's back legs in the sculpture positioned exactly the same as the momma mountain lion's back legs in the photo? Tritel: No, they are not.

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Q. Is the tail on the momma mountain lion exactly the same as the tail in the sculpture? I'm sorry. Is the tail on the momma in the sculpture exactly the same as that in the photo? Tritel: No. The photo -- on the angle that we're looking at, you can see the tail in the sculpture down between the two hind legs, and in the photograph you cannot see her legs at all, the hindquarters. Can't see her hind legs. Q. Okay. Looking at the baby mountain lion ­

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Q. -- the front paws of the baby mountain lion, can you tell me if those front paws in the sculpture are positioned exactly the same as the baby's front paws in the photograph? Tritel: Not precisely. If you, if you look at the photograph you will see that the kit's left forepaw is slightly elevated above the right and in the sculpture the left forepaw is slightly lowered, lower than the right. So that there's a very slight reversal between left and right between the photo and the sculpture. You'll notice that they're hanging very, very
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close in the same sort of way. Q. Are there any - are there any trees or mountains in the sculpture? Tritel: No.

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Q. Are there any additional rocks other than the one that momma is standing on in the sculpture? Tritel: No, not that I see. Q. Okay. Now, I want you to look at the smaller Maquette version of the sculpture than would be shown in Napier Bates number three and one? Tritel: Okay. Q. Okay. I want to go through the differences you cited in your witness report. Would you agree that the kitten legs are higher in the sculpture than they are in the photograph? Tritel: Yes. Q. And that the sculpture is not naturalistic and is stylized with unnatural sharp curves and angles? Tritel: Yes.

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Q. And that the rock bears little resemblance to the rocks in the Dyer photo? Tritel: Other than the similarity that we picked out, yes. Q. Okay. Are the momma's front legs in the sculpture in the smaller version positioned exactly the same as the momma's front legs in the photo? Tritel: We don't have the same - I'm going to say, no, I don't have the same angles of the, the big one as opposed to the Maquette, so we're kind of comparing apples and oranges here. But looking I'm guessing that the right, that her right forepaw looks like it's in a little slightly different position on the Maquette than it is in the full size. It looks like the approach to the leg is a little different, especially around the ankle. Q. Okay. If you look at Napier 0001, if you look at the far right-hand photograph, that's probably the best one where you can see both of the momma's front paws? Tritel: Yeah.

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Just point it out in case you didn't see it.

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Tritel: Right. Okay. Q. What about the back legs of the momma, are the back legs of the momma in the sculpture positioned exactly the same as the momma's back legs in the photo? Tritel: From, on the Napier one on the extreme right, that one, that one bears the, a real strong resemblance to the photograph in terms of where the legs, the back legs are, yeah. Q. Okay. But with respect to the back legs in the sculpture that can be shown in the rest of the photographs, would you say that the back legs, the position of the momma's back legs are exactly the same as they are in that photograph? Tritel: Well, in the, in the Napier photo labeled one on the -want to look up for a second, Laura - can you see this, this one right here? Q. Yes.

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Tritel: That's the photo on the extreme right, and you don't see the mother mountain lion's back legs as you don't see them in the, in the Dyer photograph. So in -- that almost sounds Like a conversation from the Mad Hatter. So, yes, the legs that you don't see are precisely like the legs that you don't see in the photograph. Q. Okay. But--

Tritel: You've-- Q. -- there's no way youcan be sure that, the question is there's no way you could be sure that the legs in the momma mountain lion in the sculpture are exactly, are positioned exactly the same as in the photo, correct?

Can you see the back legs?

Okay.

Tritel: Okay. That although there are stylistic liberties taken with, with the piece, that the legs are not put on in ways that fly off at weird angles or anything. There is a certain natural, a natural depiction that you would expect. Now, the fact that the legs are totally hidden in this angle means that they're only a certain number of places where they can be which would be supporting, which would be supporting the mountain lion in a specific sort of way with her hindquarters raised. So you can
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though implication and extrapolation determine pretty much where the back legs are going to be even though you don't see them. Okay? Q. Okay. Are you done with that answer?

Tritel: I'm done with that answer. Q. Okay. Can you see the back legs in the photograph?

Tritel: Yes. On the one's on the, to the left of that photo. Q. I'm sorry, can you see the momma mountain lion's back legs in the photograph? Tritel: No, you cannot. I was talking about the sculpture.

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Q. Okay. The shading and the coloring in the sculpture shown in Napier numbers one and three ­ Tritel: The Maquette, yes. Q. -- the same as in the photograph?

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Tritel: I only have Xerox copies here. It's really hard to tell what the, for me what the coloring is, but certainly the forepaws look like they're very red where they are not in the, in the photograph. So, yes, there is a difference between the Maquette ­ Q. Jeff, can I - Jeff, can I confirm that you're actually looking at color copies though of the sculptures? It's hard to tell looking at them. Are those in color? Tritel: Yes, they are in color. Q. Okay. Are the momma's, I'm sorry, are the baby's front paws in the sculpture in the same position as the baby's front paws in the photograph? Tritel: Which are you talking about, the Maquette? Q. Correct.

Tritel: Right. Well, the baby's hind legs are higher and together. Now, in the Maquette you'll notice that the baby's forepaws in respect to which one is higher than the other in the Maquette, it's exactly like the photo. The left, yeah, the left paw is higher than the right although they appear to be slightly bent at the wrist where it's not in the photo. Q. Is the tail on the baby mountain lion in the sculpture the same as the tail on the baby mountain lion in the photograph?

Case 2:04-cv-00408-SMM

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