Free Statement - 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 THE DISTRICT'S CONTROVERTING STATEMENT OF FACTS AND SEPARATE STATEMENT OF FACTS IN SUPPORT OF THE DISTRICT'S CROSS MOTION FOR SUMMARY JUDGMENT (Assigned to the Honorable Robert C. Broomfield)

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,

Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Rule 56.1(a) of the Rule of Practice for the United States District Court for the District of Arizona, Defendant Tempe Union High School District ("the District") submits this Controverting Statement of Facts and Separate Statement of Facts in support of the District's Response to Plaintiff's Motion for Summary Judgment on Defendants Tempe Union High School District and Arizona Academy for the Performing Arts' Affirmative Defenses Under 17

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U.S.C. § 412 ("Summary Judgment Motion") and Plaintiff's Statement of Facts in Support thereof ("SOF"). CONTROVERTING STATEMENT OF FACTS 1. Responding to SOF ¶ 1, the District does not dispute that the effective date

of Plaintiff's registration of "Big Apple" ("the Composition"), which is the subject of this litigation, was July 6, 2002. 2. Responding to SOF ¶ 2, the District affirmatively states that this fact is not

material to the issue of whether the alleged infringement of the Composition commenced prior to July 6, 2002. The District further states that SOF ¶ 2 is supported by a document that is inadmissible pursuant to Rule 408 of the Federal Rules of Evidence. The District does not dispute that the Corona del Sol High School Marching Band performed the Composition publicly during half-time at high school football games and certain marching band festivals from September 5, 2002 through November 16, 2002. However, Mr. Richardson started preparing the arrangement to be performed in April 2002. (See Declaration of Mark Richardson, ¶¶ 5-6, which is attached to The Arizona Academy for the Performing Arts' Statement of Facts in Support of its: (i) Response to Plaintiff's Motion for Summary Judgment; and (ii) Cross-Motion for Summary Judgment, as Exhibit 1 (hereinafter "Richardson Decl.").) The students received copies of their

respective parts of the Composition as early as June 4, 2002. (See Richardson Decl. ¶ 6.) 3. Responding to SOF ¶ 3, the District affirmatively states that this fact is not

material to the issue of whether the alleged infringement of the Composition commenced prior to July 6, 2002. (See The Arizona Academy for the Performing Arts' Response to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment, Section A, pp. 2-3 (hereinafter "AAPA Response and Cross-Motion".) The District further affirmatively states that the Composition was completed and distributed to the marching band students for rehearsal as early as June 4, 2002. (See Richardson Decl. ¶¶ 5-6.) The District further states that the date of the purchase orders for the arrangement

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of the Composition and the invoices for the arrangement does not change the date on which the alleged acts of infringement commenced. (See AAPA Response and CrossMotion, pp. 2-4.) Indeed, SOF ¶ 3 inherently conflicts with SOF ¶ 2 wherein Plaintiff asserts that the arranged Composition was performed from September 5, 2002 through November 16, 2002. That the purchase orders and invoices are dated later in the year does not change what is material to Plaintiff's Motion for Summary Judgment, i.e., when the allegedly infringing conduct commenced for purposes of 17 U.S.C. § 412. SEPARATE STATEMENT OF FACTS 4. Plaintiff has admitted that the Composition was first published on or before

April 1, 1994. (See Exhibit A, a true and correct copy of Plaintiff's [Verified] Response to Defendant's First Set of Discovery ("Plaintiff's First Set of Responses"), specifically, Plaintiff's response to Request for Admission No. 1.) 5. Plaintiff has admitted that he waited almost eight (8) years and until July

2002 to register the Composition with the United States Copyright Office. (See Exhibit A, Plaintiff's First Set of Responses, specifically, Plaintiff's response to Request for Admission No. 3.) 6. Plaintiff's sole explanation for the significant delay in registering the

Composition is that "like many European composers" he believed that registration in the United States was "not necessary." (See Exhibit A, Plaintiff's First Set of Responses, specifically, Plaintiff's response to Interrogatory No. 12.) 7. On April 19, 2002, District employee, Mark Richardson, purchased the

"study score" of the Composition. (See Richardson Decl. ¶ 5.) 8. Shortly after receiving the study score, Mr. Richardson commenced

working on arranging the Composition so that it could be performed by the Corona Del Sol High School Marching Band ("the Marching Band") during the Fall of 2002. (See Richardson Decl. ¶ 5.) 9. By the first week of June 2002, Mr. Richardson had distributed the

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individual musical parts of the Composition to the students and the Marching Band had begun rehearsing the Composition during its bi-weekly sectionals. (See Richardson Decl. ¶ 6.) RESPECTFULLY SUBMITTED this 19th day of August, 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 August 19, 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: 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 I hereby certify that on August 19, 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 August 19, 2005, I served the attached document by first class mail on the following, who are not registered participants of the CM/ECF System: R. Buck McKinney, Esq. P.O. Box 6231 Austin, Texas 79762-6231 Attorney for Plaintiff 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. 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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