Free Response to Motion - District Court of Arizona - Arizona

1 C. Mark Kittredge (#013907) Scott S. Minder (#023367) 2 PERKINS COIE BROWN & BAIN P.A. 3 2901 North Central Avenue Post Office Box 400 4 Phoenix, Arizona 85001-0400 (602) 351-8000 5 [email protected] 6 [email protected] 7 Attorneys for Defendant Arizona Academy for the Performing Arts, Inc. 8 9 10 11 Johan de Meij, d/b/a Amstel Music, BV, 12 13 14 15 16 17 18 19 20 21 22 23 Plaintiff's Statement of Facts ("Pl's. SOF") as follows: 24 Pl's. SOF ¶1: 25 The Arizona Academy For the Performing Arts ("the Academy") responds to Plaintiff, THE ARIZONA ACADEMY FOR THE PERFORMING ARTS' RESPONSE TO PLAINTIFF'S Tempe Union High School District, Corona Del STATEMENT OF FACTS 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, v. Defendants. No. CIV 04-0341 PHX RCB UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

26 The Academy's Response: 27 28
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Plaintiff registered his original symphonic work "The Big Apple" on July 6, 2002.

For purposes of this Motion only, the Academy does not dispute this assertion.

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Pl's. SOF ¶2:

The Corona del Sol High School Marching Band performed Plaintiff's work

between September 5, 2002 and November 16, 2002. The Academy's Response: For purposes of this Motion only, the Academy does not dispute this assertion. The Academy notes, however, that this assertion is inconsistent with Plaintiff's Complaint, which alleges that the work allegedly sold "under Composer Johan de Meij's name" (and ultimately performed by the Corona del Sol High School Marching Band) was no longer his "work." [2nd Am. Compl. ¶ 33] This assertion also ignores the fact that the Corona del Sol High School Marching Band began performing the subject work in June 2002. [Academy's SOF, ¶ 5] Pl's. SOF ¶3: The Arizona Academy for the Performing Arts ("AAPA") sold the custom

arrangement which is the subject of this lawsuit pursuant to two purchase orders dated December 19, 2002, and two subsequent invoices dated January 3, 2003. The Academy's Response: The Academy disputes this allegation. First, one of the subject purchase orders was issued to Chris Evans, not the Academy. Second, the assertion is contradicted by Plaintiff's complaint which alleges that the so-called purchase occurred "in or around the paid-out [until] January of 2003 pursuant to [the] . . . December 19, 2002" purchase summer of 2002" while also expressly acknowledging that "[f]unds were [not] actually order. [2nd Am. Compl. ¶ 16, n.1] Third, the Academy did not authorize, prepare or sell

the allegedly unauthorized derivative work at issue. [M. Richardson Decl., ¶¶ 7, 8] Finally, and most importantly, the assertion in this paragraph, even if true, is simply not material to the motion before the Court. Regardless of when the "sale" occurred,

commencement of the allegedly infringing activities occurred long before July 6, 2002. [Academy's Response and Cross-Motion for Summary Judgment]

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Dated: August 18, 2005. PERKINS COIE BROWN & BAIN P.A.

By s/ C. Mark Kittredge C. Mark Kittredge Scott S. Minder 2901 North Central Avenue Post Office Box 400 Phoenix, Arizona 85001-0400 Attorneys for Defendant Arizona Academy for the Performing Arts, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on August 18, 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 [email protected], [email protected], [email protected] CAMPBELL, YOST, CLARE & NORELL, P.C. 101 North First Avenue, Suite 2500 Phoenix, Arizona 85003-0001 Attorneys for Defendants Mark D. Richardson and William J. Richardson Francis G. Fanning [email protected] LAW OFFICES OF FRANCIS G. FANNING 500 East Southern Avenue, Suite B Tempe, Arizona 85282-5211 Attorneys for Defendant Corona del Sol Band Boosters, Inc. Garrick L. Gallagher [email protected] Debora L. Verdier [email protected] SANDERS AND PARKS 3030 North Third Street, Suite 1300 Phoenix, Arizona 85012 Attorneys for Defendant Tempe Union High School District I hereby certify that on August 18, 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 West Washington Street, Suite 216, SPC 61 Phoenix, Arizona 85003-2118

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I hereby certify that on August 18, 2005, I served the attached document by first class mail on the following, who are not registered participants of the CM/ECF System: Thomas K. Irvine IRVINE LAW FIRM 1419 North Third Street, Suite 100 Phoenix, Arizona 85004 Attorneys for Defendant Arizona Music Educators Association Arizona Music Educators Association c/o John C. Faris 4312 West Royal Palm Road Glendale, Arizona 85302-6625 R. Buck McKinney LAW OFFICE OF BUCK MCKINNEY Post Office Box 6231 Austin, Texas 78762-6231 Attorney for Plaintiff J. Gregory Osborne TOLMAN & OSBORNE, P.C. 1920 East Southern Avenue, Suite 104 Tempe, Arizona 85282 Attorneys for Defendant Chris Evans s/ Janet Roe

310977_1

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