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 REPLY TO DEFENDANT ARIZONA ACADEMY FOR THE PERFORMING ART'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

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Plaintiff has sued Defendants Tempe Union High School District (the "District) and the
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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 their 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 District's Answer to Plaintiff's Second Amended Complaint ("SAC") ¶¶ 64-65; AAPA's Answer

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to Plaintiff's SAC, ¶ 60).

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On July 21, 2005, Plaintiff filed a motion for summary judgment attaching competent summary judgment proof that the Defendants' acts of infringement were committed after Plaintiff's registration of copyright. (Docket # 124).

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On August 18, 2005, the AAPA filed a separate response. (Docket # 134). Plaintiff files this reply. I. MEMORANDUM

In response to Plaintiff's motion for summary judgment, the AAPA argues that it commenced infringement of Plaintiff's copyright in April, 2002 (prior the date Plaintiff

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registered the work), and that Plaintiff is therefore barred from recovering attorney's fees and statutory damages by 17 U.S.C. § 412. (AAPA's Response at pp. 4-5). However, the argument isn't supported by competent summary judgment proof and accordingly, the AAPA has failed to establish any genuine issue of material fact necessary to defeat Plaintiff's motion for

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summary judgment. Moreover, even if the proof submitted by the AAPA were competent, neither the proof nor the relevant law support the principles asserted. A. The "Sham" Declaration In support of its response, the AAPA has attached a sworn declaration of Mark Richardson describing the alleged facts surrounding his creation of the musical score at issue.

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In the declaration, Richardson asserts that he and his father decided "in the early spring of 2002" that Plaintiff's work, "the Big Apple" could be "arranged into a suitable piece for the Corona band." (Richardson Decl. ¶ 4) (emphasis added). Richardson claims that by the end of April, his "preparation of the musical arrangement had begun and was well underway." Id. at ¶ 5, (emphasis added). He further avers that by the first week in June, his students had begun to

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practice the completed score at sectionals. Id. at ¶ 6.

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What is so remarkable about Richardson's sworn declaration is its cheerful contradiction of virtually everything he has had to say up until now. From the beginning of this litigation, Mark Richardson has averred that he did not create an "arrangement" of

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Plaintiff's work. Now, when it might finally benefit him and others to assert otherwise, he eagerly describes his creation of the work at issue as a "musical arrangement." To say the least, his testimony is not credible. On May 18, 2004, before Richardson was a defendant in this lawsuit, and while he and the District were still concealing the fact that there had been a "sale" of an unauthorized

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arrangement of Plaintiff's work, the District's attorney asserted in written correspondence that "there was no `arranger' and there was no `custom arrangement,'" and that "[i]nstead, District employee Mark Richardson modified the duly purchased score to facilitate its use by his students in accordance with the fair use guidelines."1 Later, when Richardson himself became a defendant in this litigation, he adopted this same story in his answer to Plaintiff's complaint, specifically denying that he created an "arrangement" of Plaintiff's work2 and alleging that his preparation of the sheet music utilized by the Corona band amounted only to "editing" of a "duly purchased score."3 Obviously, Mark Richardson can't have it both ways. Either he "edited" a "duly

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purchased copy of the score," or he created a "musical arrangement." But more importantly, the fact that Richardson's declaration contradicts his prior allegations in this matter renders the declaration incompetent and improper for purposes of defeating Plaintiff's motion for summary

See Exhibit "B" to Plaintiff's MSJ. Richardson's Answer to Plaintiff's Second Amended Complaint at ¶¶ XI, XV Id. at ¶¶ XI, XV, and p. 10 (affirmative defenses).

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judgment. 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).4 As a result, Richardson's declaration cannot be relied upon to defeat Plaintiff's motion. B. Richardson's Declaration Fails to Raise any Genuine Issue of Disputed Fact Even if Richardson's declaration wasn't rendered incompetent by his contradictory pleadings, it fails to raise any genuine issue of material fact. To withstand summary judgment, a nonmovant must present evidence sufficiently

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probative to support a disputed material fact such that a reasonable jury could return a verdict in his favor. Gregory v. City of Rogers, Ark., 974 F.2d 1006, 1010 (8th Cir.1992) (en banc), cert. denied, 507 U.S. 913, 113 S.Ct. 1265, 122 L.Ed.2d 661 (1993). In this case, the AAPA "disputes" that the "sale" of the arrangement in question commenced on December 19, 2002 ­

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the date Bill Richardson issued a "purchase order" for same. However, the AAPA hasn't disputed the purchase order,5 nor presented any evidence of any prior acts committed by the AAPA that might place Plaintiff's asserted fact at issue. To the contrary, the declaration upon which the AAPA relies specifically avers that "throughout [the] project, none of [Richardson's] efforts were performed on behalf of, or approved by, the Arizona Academy for the Performing

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Arts," and that "the Academy had not had any involvement in preparation of the musical arrangement or drill design." In other words, there weren't any "pre-registration" acts that

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.") Indeed, the AAPA has itself attached the purchase order as summary judgment proof. (Exhibit "C" to AAPA's Statement of Facts).
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involved the AAPA, and the AAPA's insistence that it has somehow proved that its own acts of infringement "began long before Plaintiff's registration"6 is complete nonsense. C. The AAPA's Other Exhibits Fail to Raise a Genuine Issue of Fact Other than Mark Richardson's incompetent and irrelevant declaration, the only other summary judgment exhibits submitted by the AAPA are: (1) a copy of an invoice for the purchase of a "study score" of Plaintiff's work, (2) a document purported to be the rehearsal schedule for the Corona band during the summer of 2002, and (3) copies of the invoice and purchase orders that were originally attached to Plaintiff's motion. (Exhibits "A," "B" and "C"

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to AAPA's Statement of Facts). None of those documents indicates whether any infringements commenced prior to December 19, 2002. Exhibit "A" merely reflects the fact that Richardson purchased a copy of Plaintiff's work ­ something that is entirely legal and therefore cannot constitute "commencement" of infringement. Exhibit "B" does not reference any rehearsals of

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"The Big Apple" and therefore doesn't prove when the arrangement might have been complete (or even begun for that matter). Exhibit "C" proves that the sale in question in fact commenced on December 19, 20027 ­ the same date averred in Plaintiff's motion. For the foregoing reasons, these documents don't raise any genuine issue of disputed fact which might defeat Plaintiff's motion. Gregory, 974 F.2d at 1010.

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D.

Plaintiff's Pleadings and Complaint Aren't Competent Summary Judgment Proof and Don't Support AAPA's Arguments Lacking any competent summary judgment proof of its own to contradict Plaintiff's

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motion, the AAPA resorts to bashing Plaintiff's pleadings and complaint; hoping to illuminate

AAPA's Response, p. 5.

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See Exhibit "A," Plaintiff's MSJ. The purchase order was issued on December 19, 2002. The AAPA's invoice was issued January 3, 2003. Payment appears to have been approved on January 15, 2003.

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some inconsistency that might raise a genuine issue of material fact. But here again, the AAPA's clumsy efforts only highlight the weakness of its argument. First of all, even if Plaintiff's pleadings did assert inconsistent facts, those pleadings

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don't constitute competent summary judgment proof. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996). Second, to the extent there may be inconsistencies between Plaintiff's pleadings and the relief sought herein, they are the result of the Defendants' duplicity ­ not Plaintiff's. When Plaintiff filed his Second Amended Complaint, and indeed when he filed his motion for

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summary judgment, he was under the impression that the AAPA was involved in the "preparation, copying and distribution" of the arrangement in the summer of 2002.8 Evidently, Plaintiff was in error since Mark Richardson now admits that he and his father were the sole participants in those acts. (Richardson's Decl. ¶¶ 7-8).

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The AAPA's false note of outrage is part-and-parcel of the theatrics Plaintiff has endured from the beginning of this dispute. The Defendants have consistently concealed, manipulated and/or misrepresented facts in this case, only to later feign shock and outrage when Plaintiff's pleadings (and/or notices of claim) failed to correctly identify those facts. Frankly, this ongoing and transparent abuse of the legal process warrants imposition of the

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stiffest sanctions this Court can muster. For the time-being, Plaintiff simply requests leave to amend his complaint to correct any inconsistencies that may have come to light as a result of the AAPA's latest revelations.

The District's responses to discovery specifically asserted as much. See District's Third Supplemental Response to Plaintiff's Request for Admission No. 1, stating that "Chris Evans and the Arizona Academy for the Performing Arts ("AAPA") prepared the arrangement reflected in DIST00172-173 and DIST00174-175, a true and correct copy of which is attached to this Reply as Exhibit "A."

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E.

Plaintiff Doesn't Need to Prove When the AAPA's Acts "Commenced" The AAPA's next malingering complaint is that Plaintiff hasn't proven when the

AAPA's infringing acts "commenced." Plaintiff begs to differ, and believes that he has
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unequivocally proven that the AAPA's sole act of infringement commenced on December 19, 2002. (See Exhibit "A," Plaintiff's MSJ). Regardless, Plaintiff isn't obligated to prove the "commencement" date. Rather, in order for Plaintiff to be entitled to summary judgment on the AAPA's affirmative defense, he need only prove that the AAPA's evidence is insufficient to establish an essential element of that defense. See FDIC v. Giammettei, 34 F.3d 51, 54 (2nd

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Cir. 1994). The AAPA acknowledges that an essential element of its defense is the establishment of a date prior to registration of Plaintiff's work upon which the AAPA's acts of infringement "commenced." (AAPA's Response, p. 4). As set forth above, the AAPA has failed to present any competent summary judgment proof on that issue. Plaintiff is therefore

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entitled to summary judgment. Id. F. AAPA's "Sale" of the Arrangement Constituted "Infringement" Evidently realizing that it has painted itself into a corner, the AAPA advances the argument that a "sale" of an unlicensed work does not constitute "infringement" because "there is no exclusive right of `sale' under Section 106." (AAPA's Response at p. 3). Again, this is

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complete nonsense. Obviously, a "sale" constitutes a "distribution," which is one of the five exclusive rights afforded to copyright owners under the Copyright Act. Indeed, if the point actually requires explanation, Section 106 does the job well enough, defining "distribution" as the right "[t]o distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending." 17 U.S.C. § 106 (emphasis

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added).

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G.

The AAPA Was Not Involved in any "Series" of Infringements Commencing Prior to December, 2002 Finally, the AAPA asserts that "even if Plaintiff attempts to argue that the Academy has

committed separate infringements in the form of preparation, copying and distribution of the arrangement, the result is the same . . . [t]he alleged infringement commenced prior to registration." (AAPA's Response at p. 6) (emphasis in original). In support, the AAPA cites to

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several cases ­ all involving a series of the same infringement committed by the same defendant. Id. Those cases are inapposite since Plaintiff's claim against the AAPA is for a single act of infringement which, according to the AAPA's own summary judgment proof, was entirely separate from the Richardsons' alleged pre-registration acts of infringement. (Richardsons' Decl. ¶¶ 4-8). For sake of argument, if the AAPA means to assert that the Richardsons' alleged preregistration acts of infringement constituted "commencement" of infringement for purposes of the AAPA's subsequent sale in December 2002, it is misstating the law. While there are cases recognizing that a series of the same act, committed in the same manner, by the same

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defendants might constitute a "series" of infringements for purposes of "commencement," there isn't a single case standing for the proposition that different acts by different defendants implicating different awards of damages may be cobbled together into one "series."9 In this case, the AAPA isn't the "same defendant" that infringed Plaintiff's copyright in the spring of 2002. According to the AAPA's own summary judgment proof, the Richardsons

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were solely responsible for those actions. (Richardsons' Decl. ¶¶ 4-8). Moreover, the AAPA's December sale was not the "same act" committed in the "same manner" as the Richardsons'

See Plaintiff's Reply to District's Response to Plaintiff's MSJ, pp. 3-5, discussing this issue in detail. That pleading is incorporated herein by this reference.

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alleged pre-registration acts of infringement. According to the AAPA's summary judgment proof, the Richardsons authorized and prepared a musical arrangement of Plaintiff's work in spring 2002, and allowed the Corona band to use the arrangement during rehearsals beginning

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in June 2002. (Richardsons' Decl. ¶¶ 4-8). The AAPA subsequently "sold" the arrangement to the District on or about December 19, 2002 ­ an entirely different act with different purposes (transfer of ownership of the arrangement) and different consequences. Indeed, a different measure of damages comes into play as a result of this sale - specifically the AAPA's profits. See Walker v. Forbes, Inc., 28 F.3d 409, 412 (4th Cir. 1994). Because the AAPA's sale was

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for a different purpose and because a new measure of damages is implicated by the December 2002 sale, the alleged pre-registration acts were decidedly distinct from the post-registration sale, and cannot be utilized for purposes of establishing "commencement" of that sale. See Mason I, 741 F.Supp. at 1285, citing Whelan Associates, Inc. v. Jaslow Dental Laboratory,

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Inc., 609 F. Supp. 1325, 1331 (E.D. Pa. 1985). II. CONCLUSION

Plaintiff has presented this Court with simple and direct proof of the date upon which the AAPA "commenced" infringement of Plaintiff's copyright ­ specifically, December 19, 2002. Because the AAPA has presented no competent summary judgment evidence regarding

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any prior acts of infringement committed by the AAPA (or anyone else for that matter), and because the relevant law doesn't support the AAPA's argument that the Richardsons' alleged pre-registration acts of infringement constituted "commencement" of the AAPA's postregistration "sale" of the work, this Court should grant Plaintiff's motion for summary judgment.

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Dated this 6th 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 JOHAN DE MEIJ d/b/a AMSTEL MUSIC, BV

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CERTIFICATE OF SERVICE I certify that on September 6, 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 6, 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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