Free Response - District Court of Arizona - Arizona

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Garrick L. Gallagher/Bar No. 009980 Debora L. Verdier/Bar No. 018676 SANDERS & PARKS, P.C. 1300 Abacus Towers 3030 North Third Street Phoenix, AZ 85012-3099 Telephone: (602) 532-5600 Facsimile: (602) 532-5700 [email protected] [email protected] Attorneys for DEFENDANT Tempe Union High School District UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA PHOENIX DIVISION CV04 0341 PHX RCB RESPONSE TO MOTION TO STRIKE

JOHAN DE MEIJ, d/b/a AMSTEL MUSIC, 11 BV, 12 13 v. 14 TEMPE UNION HIGH SCHOOL DISTRICT, CORONA DEL SOL BAND 15 BOOSTERS, GREAT VIDEO PRODUCTIONS, ARIZONA MUSIC 16 EDUCATORS ASSOC., ARIZONA ACADEMY FOR THE PERFORMING 17 ARTS, INC., MARK D. RICHARDSON, WILLIAM J. RICHARDSON and CHRIS 18 EVANS, 19 20 21 22 23 24 25 26 Defendants Plaintiff,

(Assigned to the Honorable Robert C. Broomfield)

Plaintiff filed a motion for summary judgment seeking a ruling that the District's affirmative defense under 17 U.S.C. Section 412 should not be permitted to go forward. The District responded and submitted a cross-motion for summary judgment seeking a ruling that Plaintiff should be precluded from recovering statutory damages and attorneys' fees in light of Plaintiff's untimely copyright registration. In support of the District's cross-motion and in opposition to Plaintiff's motion, the District cited to a declaration of co-defendant Mark Richardson ("Richardson Declaration"). Plaintiff seeks

Case 2:04-cv-00341-RCB

Document 161

Filed 09/23/2005

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to strike the Richardson Declaration on the grounds that it "contradicts Richardson's pleadings in this matter, and therefore may not be relied upon to defeat summary judgment." (See Plaintiff's Response and Objections to Defendant Tempe Union High School District's Controverting Statement of Facts and Separate Statement of Facts and Motion to Strike ("Motion to Strike"), p. 5.) Plaintiff's Motion to Strike should be denied because the Richardson Declaration does not contain any statements that are inconsistent with or which controvert any previous statements made by Mark Richardson. The District does not dispute that affidavits containing factual statements, which flatly contradict previous statements made by that same party, should not be considered by the Court. However, that is not the case here. Plaintiff's rhetoric aside, at the core of Plaintiff's argument is that either Mark Richardson "edited" a "duly purchased copy of the score," or he created a "musical arrangement," but not both. (Motion to Strike, p. 6.) Plaintiff's position assumes, but does not explain, how these two statements flatly contradict each other. See Pieszak v. Glendale Adventist Medical Center, 112 F. Supp. 2d 970, 1000 (C.D. Cal. 2000) (general rule that contradicting declaration should be disregarded applies only if the declaration flatly contradicts earlier statements in an attempt to create an issue of fact). The Richardson Declaration is inconsistent only in its choice of words ­ words to which Plaintiff's counsel has unilaterally placed a legal significance. There are no "facts" that are flatly contradicted. Whether the preparation work Mark Richardson did to Plaintiff's Composition before distributing it to the students for performance constitutes copyright infringement is a matter to be decided by the Court or jury. The substance of the declaration is consistent with Mark Richardson's position throughout this litigation, i.e., the preparation work that he performed to make the Composition suitable for performance by the students began prior to the date of Plaintiff's registration. (See 09/20/05 Declaration of Mark Richardson, attached as Exhibit A to The Arizona Academy for the Performing Arts' Response to Plaintiff's Motion to Strike Summary Judgment Evidence, ¶¶ 2-3 (clarifying that he was placing no legal significance on the
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word "arrangement").) Plaintiff does not challenge the factual timeline set forth in the Richardson Declaration and presents no evidence to the contrary. Plaintiff has alleged that Mark Richardson created a "custom marching band arrangement" in violation of Plaintiff's copyright. In response, Mark Richardson denied that what he did constituted copyright infringement. The purpose of the Richardson Declaration was to establish factually the timeframe in which the Composition was prepared for, and distributed to, the students. In that context, Mark Richardson indicates that he "prepared the arrangement" for use by the Band prior to the date of Plaintiff's registration. (Richardson Declaration, ¶ 5 ("I started preparing the arrangement for the Corona Band almost immediately after receiving that score. My preparation of the musical arrangement had begun and was well underway by the end of April, 2002."; see also ¶ 7 ("effort involved in preparing the musical arrangement and drill design".) Nowhere in his declaration does Mark Richardson concede that he created a "custom marching band arrangement" in violation of the Copyright Law. The issue of whether the work he performed, whether it is called "editing" or "arranging," constitutes copyright infringement is within the purview of the Court.1 CONCLUSION For the foregoing reasons, Plaintiff's Motion to Strike should be denied.

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Plaintiff also argues that the Richardson Declaration should be stricken because it is inconsistent with a statement made by the District before Mark Richardson was even named as a Defendant. This position is similarly without merit and does not warrant further discussion.

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RESPECTFULLY SUBMITTED this 23rd day of September, 2005. SANDERS & PARKS, P.C.

By

s/ Debora L. Verdier Garrick L. Gallagher Debora L. Verdier 1300 Abacus Towers 3030 North Third Street Phoenix, Arizona 85012-3099 Attorneys for DEFENDANT Tempe Union High School District

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CERTIFICATE OF SERVICE I hereby certify that on September 23, 2005, I electronically transmitted the attached documents to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: R. Buck McKinney, Esq. P.O. Box 6231 Austin, Texas 79762-6231 Attorney for Plaintiff Martin P. Clare, Esq. CAMPBELL YOST CLARE & NORELL, P.C. 101 North First Avenue, Suite 2500 Phoenix, AZ 85003-0001 Attorneys for Defendants Richardsons C. Mark Kittredge, Esq. Scott S. Minder, Esq. PERKINS COIE BROWN & BAIN, PA 2901 N. Central Avenue, 20th Floor Post Office Box 400 Phoenix, AZ 85001-0400 Attorneys for Defendant Arizona Academy for the Performing Arts, Inc. Francis G. Fanning, Esq. LAW OFFICES OF FRANCIS G. FANNING 500 E. Southern Ave., Suite B Tempe, AZ 85282-5211 Attorney for Defendant Corona del Sol Band Boosters Thomas K. Irvine, Esq. IRVINE LAW FIRM, P.A. 1419 North Third Street, Suite 100 Phoenix, AZ 85004 Attorneys for Defendant Arizona Music Educators Assoc. I hereby certify that on September 23, 2005, I served the attached document by hand delivery to: The Honorable Robert C. Broomfield United States District Court Sandra Day O'Connor U.S. Courthouse 401 W. Washington Street, Suite 216, SPC 61 Phoenix, AZ 85003-2118

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I hereby certify that on September 23, 2005, I served the attached document by first class mail on the following, who are not registered participants of the CM/ECF System: J. Gregory Osborne, Esq. TOLMAN & OSBORNE, P.C. 1920 E. Southern Avenue, Suite 104 Tempe, AZ 85282 Attorneys for Defendant Chris Evans Arizona Music Educators Association c/o John C. Faris 4312 West Royal Palm Road Glendale, AZ 85032-6625

s/ Peggy Bailey

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