Free Reply to Response to Motion - District Court of Arizona - Arizona

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R. Buck McKinney Texas Bar #: 00784572 LAW OFFICE OF BUCK MCKINNEY PO Box 6231 Austin, Texas 78762-6231 Telephone: (512) 236-0150 Facsimile: (512) 444-1879 ATTORNEY FOR PLAINTIFF UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA PHOENIX DIVISION JOHAN DE MEIJ, d/b/a AMSTEL MUSIC, BV Case No.: No. CIV 04-0341 PHX RCB PLAINTIFF, vs. TEMPE UNION HIGH SCHOOL DISTRICT, CORONA DEL SOL BAND BOOSTERS, GREAT VIDEO PRODUCTIONS, ARIZONA MUSIC EDUCATORS ASSOC., ARIZONA ACADEMY FOR THE PERFORMING ARTS, INC., MARK D. RICHARDSON, WILLIAM J. RICHARDSON AND CHRIS EVANS DEFENDANTS PLAINTIFF'S CONSOLIDATED REPLY TO THE AAPA'S AND DISTRICT'S RESPONSES TO PLAINTIFF'S MOTION TO STRIKE SUMMARY JUDGMENT EVIDENCE

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I.
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BACKGROUND

Plaintiff has sued Defendants Tempe Union High School District (the "District) and the Arizona Academy for the Performing Arts ("AAPA") for, inter alia, copyright infringement. The District and the AAPA have asserted affirmative defenses under 17 U.S.C. § 412, claiming that the acts of infringement in question commenced prior to the registration of Plaintiff's copyright, and that Plaintiff is therefore barred from recovering statutory damages and/or

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attorney's fees. (See District's Answer to Plaintiff's Second Amended Complaint ("SAC") ¶¶ 64-65, Docket # 78; AAPA's Answer to Plaintiff's SAC, ¶ 60, Docket # 80).

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On July 21, 2005, Plaintiff moved for summary judgment on the Defendants' affirmative defenses under 17 U.S.C. § 412, submitting competent summary judgment evidence which established that the Defendants' acts of infringement commenced after

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Plaintiff registered his work. (Docket # 124). On August 18 and 19, 2005, the Defendants filed responses. (Docket #'s 134, 137). The Defendants do not dispute Plaintiff's summary judgment evidence, nor do they deny the acts described therein. Indeed, the District admits that its own acts of infringement began on September 5, 20051 (two months after Plaintiff registered his work), and the AAPA

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has attached Plaintiff's summary judgment evidence to its own Statement of Facts.2 Rather, the Defendants seek to defeat Plaintiff's motion for summary judgment by referencing the alleged infringing acts of a third party - Defendant Mark Richardson.3 In support, they have submitted a declaration from Richardson in which he alleges that he created a "musical

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arrangement" of Plaintiff's work, "commencing" such activities in "early spring 2002." (Richardson's Decl. ¶¶ 3, 4, 5, 6, 7, 8). On September 6, 2005, Plaintiff filed a reply in which he demonstrated that the alleged infringing acts of a third party ­ in this case Mark Richardson ­ are entirely irrelevant to the question of whether or not the District or the AAPA "commenced" infringement of Plaintiff's

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District's Response to Plaintiff's Motion for Summary Judgment, p. 6.

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Exhibit "C," AAPA's Statement of Facts, Docket # 136. Curiously, the AAPA admits that it "sold" an unauthorized arrangement of Plaintiff's work between December 19, 2002 and January 3, 2003, but argues that this doesn't constitute "infringement." Plaintiff has soundly rebutted that argument. See Plaintiff's Reply to AAPA's Response to Plaintiff's Motion for Summary Judgment, p. 7. Attached as Exhibit "1" to the AAPA's Statement of Facts ("SOF"), hereinafter referred to as the "Richardson Decl.").
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copyrights prior to registration.4 Plaintiff further argued that, even if Richardson's alleged acts were relevant, the Defendants haven't presented any competent summary judgment proof of such conduct. The only evidence presented by the Defendants on this subject is Richardson's

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declaration.5 However, that declaration sharply contradicts Richardson's prior material factual allegations in this matter, and is therefore incompetent and improper for purposes of defeating Plaintiff's motion for summary judgment.6 Since the beginning of this lawsuit, Mark

Richardson has repeatedly asserted that he did not create a "musical arrangement" of Plaintiff's work, but instead merely "edited" a "duly purchased copy" of Plaintiff's work in accordance

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with the fair use doctrine set forth in 17 U.S.C. §107.7 In contrast, Richardson's declaration consistently uses the term "arrangement" or "musical arrangement," and never once refers to an "edit" of Plaintiff's work. As described below, this is no casual discrepancy.

Plaintiff's Reply to AAPA's Response to Plaintiff's Motion for Summary Judgment, pp. 8-9, Docket # 143; Plaintiff's Reply to District's Response to Plaintiff's Motion for Summary Judgment, pp.3-5. For clarity, the AAPA also submitted a rehearsal schedule, but it doesn't even reference Plaintiff's work. The AAPA has also submitted the same invoice and purchase order submitted by Plaintiff in connection with his motion for summary judgment, but this proves only that the AAPA sold the work between December 19, 2002 and January 3, 2003, and therefore doesn't prove an earlier "commencement" date. See Knudsen v. United States, 254 F.3d 747, 752 (8th Cir.2001) (holding that a party's later affidavit contradicting his pleading and deposition testimony cannot create a genuine issue of fact for purposes of summary judgment). See also Soo Line R. Co. v. St. Louis Southwestern Ry. Co., 125 F.3d 481, 483 (7th Cir.1997). ("[A] party is bound by what it states in its pleading. . . [A]lthough the rule smacks of legalism, judicial efficiency demands that a party not be allowed to controvert what it has already unequivocally told a court by the most formal and considered means possible.") See Richardson's Answer to Plaintiff's Second Amended Complaint at ¶¶ XI, XV and p. 10 (affirmative defenses). This allegation has also been asserted several times over by the District. See Plaintiff's Reply to the AAPA's Response to Plaintiff's Motion for Summary Judgment, p. 3.
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In light of the factual inconsistencies between Richardson's pleadings and his sworn declaration, Plaintiff filed a motion to strike that evidence.8 On September 23, 2005, the District and the AAPA filed responses.9 Plaintiff now files this reply. II. ARGUMENT

The Defendants have asserted several arguments in opposition to Plaintiff's motion to strike. First, the AAPA claims that whether Mark Richardson created an "arrangement" or merely "edited" a duly purchased copy of Plaintiff's work is "immaterial."10 Second, the Defendants argue that Richardson's declaration doesn't really contradict his prior pleadings.11

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Third, evidently recognizing the weaknesses of arguments one and two, the Defendants have attempted to harmonize the inherent contradictions in Richardson's testimony by having him file yet another declaration.12 As explained below, the Defendants' tortured attempts to "fix" this problem have only

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exacerbated their predicament. Richardson's Contradictions are Clearly "Material" Obviously, there are material factual differences between a "musical arrangement" and an "edit." They simply aren't the same act. A "musical arrangement" is commonly defined as
See Attachment #1 to Plaintiff's Reply to AAPA's Response to Plaintiff's Motion for Summary Judgment, Docket # 143, and Attachment # 1 to Plaintiff's Reply to AAPA's Response to Plaintiff's Motion for Summary Judgment Docket, # 144. See also Plaintiff's separate Motion to Strike, Docket # 164. Docket #'s 160, 161.

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See AAPA's Response, p. 2-3. The AAPA goes so far as to argue that "the Court could strike the word `arrangement' from Mr Richardson's declaration and substitute the word `edit' . . . and the import of his declaration would be unchanged." To the contrary, as described below, such a change would eviscerate the AAPA's argument that it "commenced" infringement in early spring 2002 because an "edit" generally doesn't constitute copyright infringement. The AAPA, District and the Richardsons well know this, and that is the reason they consciously chose to use the word "arrangement." Id., pp. 3-5. Id., p. 5, and Exhibit "1."

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"the adaptation of a composition to voices or instruments, or to a new purpose."13 To "edit" something is to "correct" it (as in a manuscript), or to "omit or eliminate" portions therefrom.14 Moreover, under the so-called "music education guidelines,"15 "editing" presupposes that the editor is performing that act on a "duly purchased printed copy" of the score.16 "preparation" of a new "musical arrangement" is obviously an entirely different act. There are also material differences in the legal consequences attendant to (a) creating a "musical arrangement," and (b) "editing" a "duly purchased copy" of someone else's work. Under the Copyright Act, "arrangements" are clearly defined as "derivative works." 17 U.S.C. The

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§ 101. Therefore, as a matter of law, if someone has created an unauthorized "arrangement," he has committed copyright infringement. 17 U.S.C. § 106. On the other hand, "editing" a "duly purchased copy" of a copyrighted work is generally permissible under the music education guidelines, and is commonly referred to as "fair use."17 As set forth above, the Defendants want this Court to rule that Plaintiff isn't entitled to statutory damages or attorney's fees under 17 U.S.C. § 412. That statute provides that "no award of statutory damages or attorney's fees . . . shall be made for . . . any infringement of copyright commenced after first publication of the work and before the effective date of registration." Id. (emphasis added). It is important to note that the statute does not bar

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plaintiff's recovery of statutory damages or attorney's fees if a defendant merely engaged in
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Random House College Dictionary, Revised Edition (1988). Id.

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These guidelines are appended to 17 U.S.C. § 107 as Notes of Committee on the Judiciary, House Report No. 94-1476.

Id. ("Printed copies which have been duly purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered, or lyrics added if none exist.") (emphasis added).
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See House Report No. 94-1476.

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"fair use" prior to registration. In pleadings, Richardson has described his pre-registration acts as "edits" and non-infringing "fair use."18 In the context of Plaintiff's motion for summary judgment, he has described these same activities as the preparation of a "musical arrangement."

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Obviously, the difference between these two contradictory assertions is "material." It should not be difficult for the Court to surmise that the Defendants are trying to "have it both ways." While Mark Richardson may be entitled to assert alternative legal arguments, he cannot make conflicting factual allegations and then ask this Court to rely on same for purposes of defeating and/or granting summary judgment. Yet, by arguing, on the

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one hand, that he created a "musical arrangement," and on the other that he merely "edited" a "duly purchased copy" of Plaintiff's work, that is exactly what he is doing. Richardson's Declaration Squarely Contradicts His Pleadings Employing a "selective reading" of Mark Richardson's Answer, the AAPA argues that

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there really aren't any contradictions between Richardson's pleaded allegations and his declaration. Plaintiff begs to differ. In his Reply, Plaintiff has referenced three separate passages from Richardson's Answer to Plaintiff's Second Amended Complaint ("SAC") which contradict his declaration. The first passage is from Paragraph XI of Richardson's Answer. That paragraph responds to

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Paragraph 16 of Plaintiff's SAC, in which Plaintiff specifically alleges that Mark Richardson created a "musical arrangement" of Plaintiff's work, and that the AAPA's subsequent sale of same was "entirely unauthorized, and without any license to do so." Richardson responds as follows: In his Answer,

See Richardson's Answer to Plaintiff's Second Amended Complaint, ¶¶ XI and p. 10 (affirmative defenses).

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"[t]he Richardsons deny the allegations contained in this paragraph and affirmatively assert that the musical score for "The Big Apple" was duly purchased and any editing to, and copying or distribution of, the score or portions of the score were subject to the fair use doctrine contained in 17 U.S.C. § 107 and, therefore, no authorization was required." (emphasis added). The contradiction could hardly be clearer. Plaintiff alleges that Mark Richardson

created a "musical arrangement." Richardson specifically denies this and asserts that he
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merely "edited" a "duly purchased copy" of Plaintiff's work ­ a distinction that has profound legal consequences under the Copyright Act. The second passage referenced by Plaintiff is from Paragraph XV of Mark Richardson's Answer. Therein, he admits that the Corona del Sol High School Marching Band performed "The Big Apple" but denies "that the performance constituted a custom arrangement." Although Richardson's language may be clumsy, it is clear that he is, once again, denying that there was any "arrangement" of Plaintiff's work. Finally, Plaintiff references Richardson's affirmative defense on page 10 in which he specifically states that "the musical score was purchased for educational use;" that "the use of

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the musical score was subject to the fair use doctrine outlined in 17 U.S.C. § 107;" and that "no infringement occurred." In contrast, in his declaration Richardson asserts that his father, Bill Richardson, "authorized" him to prepare an "arrangement" of Plaintiff's work in early spring 2002.19 As set forth above, the Copyright Act defines an "arrangement" as a "derivative work." As such, the conduct described in Richardson's declaration clearly constitutes

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infringement. Moreover, in its response, the AAPA asserts that "authorizing infringement is

Richardson Decl., ¶ 4.

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itself copyright infringement."20

Again, the contradiction between these assertions and

Richardson's prior allegation that "no infringement occurred" could hardly be clearer. In summary, when it has benefited him to say so, Mark Richardson has asserted that he

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created a "musical arrangement."

When it didn't, he has asserted something else.

Richardson's testimony simply isn't trustworthy, and therefore cannot be used to create a fact issue for purposes of defeating Plaintiff's motion for summary judgment. Knudsen, 254 F.3d at 752; Foster v. Arcata Associates, 772 F.2d 1453, 1462 (9th Cir.1985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986); Radobenko v. Automated Equipment Corp., 520

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F.2d 540, 543-44 (9th Cir.1975). Moreover, in light of Richardson's vacillations, it should go without saying that his declaration cannot be used to establish the lack of any genuine issues of material fact for purposes of the AAPA's and District's respective cross-motions for summary judgment.21 Mark Richardson's Second Declaration Fails to "Harmonize" His Pleadings with His Declaration In the hopes of clearing everything up, the Defendants have asked Mark Richardson to

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try one more time. In a second declaration attached to the AAPA's Response, Richardson now asserts that he doesn't understand the "legal significance of the word `arrangement.'"22 That is doubtful inasmuch as he artfully employs the term eight (8) different times in his first declaration, and never once uses any other term to describe his actions. The claim is similarly
See AAPA's Response to Plaintiff's Motion for Summary Judgment, p. 4.

The District and the AAPA have independently filed cross-motions for summary judgment on their 17 U.S.C. § 412 affirmative defenses. Incredibly, Richardson compounds his troubles by going on to assert his own legal argument - that "he does not believe anything [he] did constitutes . . . an infringement." (Richardson's Second Decl. ¶ 3). If that's the case, the Court can dispense with this issue post haste. As set forth above, the Act does not preclude attorney's fees or statutory damages if the Defendant engaged in "lawful" uses of Plaintiff's work, or engaged in "fair use" prior to registration.
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dubious in light of Richardson's "fair use" affirmative defenses, which are specifically predicated upon the difference between an infringing "musical arrangement," and a noninfringing "edit."23 In any event, Richardson's understanding of the legal significance of the word "arrangement" is remarkably beside the point. As a music educator and professional musician with a degree from Arizona State University in instrumental music, he certainly understands the factual differences between (a) the creation of a "musical arrangement," and (b) "editing" a "duly purchased copy" of Plaintiff's work. If Mark Richardson truly wished to harmonize his pleadings with his declaration, he needed to explain why these two acts are,

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factually, the same thing. This he has not done (nor could he ­ they simply aren't the same thing). As such, Richardson has failed to harmonize his pleadings with his prior declaration, and the declaration should therefore be stricken. III. CONCLUSION

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For the foregoing reasons, Plaintiff requests that the Court strike the first and second declarations of Mark Richardson. Dated this 2nd day of October, 2005.

s/ R. Buck McKinney________________ R. Buck McKinney, Esq. LAW OFFICE OF BUCK McKINNEY Texas Bar No. 00784572 P.O. Box 6231 Austin, Texas 78762-6231 Telephone (512) 236-0150 Facsimile (512) 444-1879 ATTORNEY FOR PLAINTIFF

See Richardson's Answer to Plaintiff's Second Amended Complaint, ¶¶ XI, XV and p. 10 (affirmative defenses).

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CERTIFICATE OF SERVICE I certify that on October 2, 2005, a copy of the attached document was electronically transmitted using the CM/ECF System for electronic filing and transmittal of a notice of electronic filing to the following CM/ECF registrants: Garrick L. Gallagher [email protected] Debora L. Verdier [email protected] Sanders and Parks, PC 3030 N. Third Street, Suite 1300 Phoenix, AZ 85012-3099 Francis G. Fanning [email protected] Law Offices of Francis G. Fanning 500 E. Southern Ave., Suite B Tempe, AZ 85282-5211 Martin P. Clare [email protected]; [email protected]; [email protected] Campbell, Yost, Clare, & Norell, P.C. 101 North First Avenue, Suite 2500 Phoenix, AZ 85003 C. Mark Kittredge [email protected]; [email protected]; [email protected] Scott S. Minder [email protected]; [email protected] Perkins Coie Brown & Bain, P.A. 2901 North Central Avenue Post Office Box 400 Phoenix, AZ 85001-0400 Thomas K. Irvine [email protected] Irvine Law Firm, PA 1419 N. Third St, Ste. 100 Phoenix, AZ 85004

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I certify that on October 2, 2005 a copy of the attached document was served on the following parties via U.S. mail: J. Gregory Osborne Tolman & Osborne, P.C. 1920 E. Southern Ave., Ste.104 Tempe, AZ 85282

s/ R. Buck McKinney________________
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