Free Response in Opposition 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 RESPONE TO DEFENDANT ARIZONA ACADEMY FOR THE PERFORMING ART'S CROSS-MOTION FOR SUMMARY JUDGMENT

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Plaintiff has sued Defendant Arizona Academy for the Performing Arts ("AAPA") for
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copyright infringement. In its answer, the AAPA has asserted an affirmative defense under 17 U.S.C. § 412, claiming that its acts of infringement "commenced" prior to the registration of Plaintiff's copyright, and that Plaintiff is therefore barred from recovering statutory damages and/or attorney's fees. (See AAPA's Answer to Plaintiff's SAC, ¶ 60). On July 21, 2005, Plaintiff filed a motion for summary judgment ("MSJ") attaching

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competent summary judgment proof establishing that the AAPA's acts of infringement commenced after Plaintiff's registration of copyright. (Docket # 124). On August 18, 2005,

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the AAPA filed a Cross-Motion for Summary Judgment on the same issue, arguing that it "commenced" infringement of Plaintiff's copyright prior to registration. (Docket # 134). Plaintiff files this Response.

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I.

STATEMENT OF FACTS

Plaintiff refers to and incorporates (1) the Statement of Facts ("SOF") attached to his MSJ (Docket # 125), and (2) his Response and Objections to the AAPA's SOF attached to Plaintiff's Reply to the AAPA's Response to Plaintiff's MSJ (Attachment #1 to Docket # 143). II. STANDARD OF REVIEW

A defendant moving for summary judgment on an affirmative defense must establish each element of his defense as a matter of law and show the absence of any genuine issues of material fact related thereto. See e.g. Buttry v. General Signal Corp., 68 F.3d 1488, 1492 (2d Cir. 1995). In determining whether there is a disputed issue of material fact that precludes

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summary judgment, the Court must consider all evidence in the light most favorable to plaintiff as the nonmovant. Garcia v. Pueblo Country Club, 299 F.3d 1233, 1236-37 (10th Cir. 2002). III. A. ARGUMENT

The AAPA Has Not Submitted Competent or Probative Summary Judgment Proof The AAPA's cross-motion for summary judgment relies principally on the declaration

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of Mark Richardson, who avers that he "commenced" infringement of Plaintiff's copyrights prior to July 6, 2002. Richardson's declaration specifically contradicts his own pleadings in this matter, and therefore does not constitute competent summary judgment proof. (See Plaintiff's Response and Objections to the AAPA's SOF and Motion to Strike, pp. 3-4).1

In his answer to Plaintiff's complaint, Richardson specifically denies that he created an "arrangement" of Plaintiff's work and alleges that his preparation of the sheet music utilized by the Corona band amounted only to "editing" of a "duly purchased score." (Richardson's Answer to Plaintiff's Second Amended Complaint at XI,

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The only other evidence submitted by the AAPA is (1) a "rehearsal schedule" for the Corona del Sol Band, (Exhibit "B," AAPA's SOF), and (2) a purchase order and invoice for the AAPA's sale of a musical arrangement of Plaintiff's work - dated December 19, 2002 and

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January 3, 2003, respectively. (Exhibit "C," AAPA's SOF). The rehearsal schedule doesn't even mention Plaintiff's work. The purchase order and invoice conclusively establish that the AAPA's sale of a musical arrangement of Plaintiff's work occurred more than five (5) months after the U.S. registration of Plaintiff's work. As such, neither of these documents establishes that any of the Defendants (much less the AAPA) commenced infringement of Plaintiff's work

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prior to July 6, 2002. Finally, even if the AAPA's summary judgment evidence was competent, it wouldn't help the AAPA. This is because Mark Richardson specifically avers that the AAPA had absolutely nothing to do with any acts of infringement occurring prior to July 6, 2002. (See

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Richardson's Decl. ¶¶ 7-8).2 B. Evidence in the Record Establishes Genuine Issues of Material Fact In his declaration, Mark Richardson claims that co-Defendant Bill Richardson "authorized" him to create an arrangement of Plaintiff's work in early spring, 2002. (Richardson Decl. ¶¶ 4-6). However, according to a "Copyright Permissions Service"

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application signed by Bill Richardson, he specifically sought permission for the use of
XV, p. 10). However, in his declaration, Richardson alleges the opposite ­ that he did in fact create a musical arrangement of Plaintiff's work. This inherent contradiction renders Richardson's declaration improper for summary judgment purposes. Plaintiff notes that the AAPA has recently asserted the spurious argument that Plaintiff no longer intends to pursue a claim against the AAPA for the "distribution" of his work. (See AAPA's Reply to Plaintiff's Response to AAPA's Application for Security Bond, pp. 3-4, Docket # 156). No doubt the AAPA will repeat this argument in its responsive pleadings to this brief. In case the Court is the least bit misled by this wordplay, Plaintiff maintains that the AAPA is guilty of the "sale" of an arrangement of Plaintiff's work, as evidenced by the AAPA's own summary judgment proof. (See Exhibit "C" to the AAPA's SOF; Mark Richardson's Decl. ¶ 9). A "sale" unequivocally constitutes a "distribution" of a copyrighted work. 17 U.S.C. § 106. Obviously, Plaintiff has no intention of abandoning this well-established claim.
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Plaintiff's work on May 10, 2002, thereafter abandoning the process on May 21, 2002. (See Exhibit "B" to Plaintiff's Motion for Leave to Amend, Docket # 96). Obviously, the

application contradicts Mark Richardson's assertion that Bill Richardson "authorized" the
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creation of an arrangement in "early spring 2002" since Bill Richardson himself was in the process of pursuing authorization just weeks prior to the summer solstice. Id. Moreover, handwritten notes on the application in question indicate that Bill Richardson specifically informed his copyright licensing agent on May 21, 202 that he had changed his mind and that he didn't intend to use Plaintiff's work. Id. It is interesting to note

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that this "change of heart" occurred immediately after Richardson was advised that he could expect to pay a substantial fee in connection with the use of Plaintiff's work. Id.3 Richardson's representation obviously controverts Mark Richardson's entire declaration since it implies that the Richardsons never used Plaintiff's work. More importantly, it unequivocally establishes

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that the Richardsons are liars and thieves who fraudulently misrepresented facts related to the very issue upon which the AAPA now seeks summary judgment. Because the Richardsons' tarnished credibility is so clearly at issue, summary judgment in favor of the AAPA based on Mark Richardson's self-serving and contradictory testimony would be wholly inappropriate. See Schoonejongen v. Curtiss-Wright Corp., 143 F.3d 120, 129-130 (3d Cir. 1998) (the court

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may not grant summary judgment if it must weigh the credibility of witnesses). C. In the Alternative, Plaintiff Requests Continuance to Allow Discovery As set forth above, Plaintiff has presented competent summary judgment proof establishing that the AAPA "commenced" infringement of his work after registration ­ specifically, a purchase order dated December 19, 2002 naming the AAPA as "vendor", and an

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See e-mail from licensing agent Jeni Paulson to Bill Richardson, attached to the same Exhibit.

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invoice dated January 3, 2003 which was issued by the AAPA. (See Exhibit "C," Plaintiff's MSJ).4 Unsurprisingly, the AAPA has failed to present any cogent argument rebutting that evidence,5 and has failed to establish the lack of any genuine issues of material fact regarding its allegation that it "commenced" infringement of Plaintiff's work prior to registration. As such, Plaintiff respectfully asserts that the Court should grant Plaintiff's motion for summary judgment, and deny the AAPA's cross-motion. Notwithstanding, in the event the Court is unpersuaded by these arguments, pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, Plaintiff respectfully requests a continuance

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of the AAPA's Cross Motion for Summary Judgment in order to conduct related discovery. In support thereof, Plaintiff attaches a Rule 56(f) declaration hereto as Exhibit "A." IV. CONCLUSION

For the foregoing reasons, Plaintiff asks the Court to deny the AAPA's cross-motion
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for summary judgment. In the alternative, pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, Plaintiff respectfully requests a continuance of the AAPA's Cross Motion for Summary Judgment in order to conduct discovery related thereto.

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In its Reply to Plaintiff's Response to the AAPA's Application for Security Bond, the AAPA has asserted the ridiculous argument that Plaintiff has "acknowledged" that the AAPA "simply was not involved in the allegedly infringing activities that are the subject of this suit." (AAPA's Reply, pp. 3-4).

Indeed, the AAPA has attached the same two documents as summary judgment proof to its own cross-motion. See Exhibit "C, AAPA's Cross Motion for Summary Judgment.

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Dated this 20th day of September, 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

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CERTIFICATE OF SERVICE I certify that on September 20, 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 September 20, 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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