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 24 Introduction Plaintiff has sued the Arizona Academy For the Performing Arts ("the Academy") Plaintiff, THE ARIZONA ACADEMY FOR THE PERFORMING ARTS' RESPONSE TO PLAINTIFF'S Tempe Union High School District, Corona Del MOTION FOR SUMMARY Sol Band Boosters, Great Video Productions, JUDGMENT Arizona Music Educators Assoc., Arizona Academy for the Performing Arts, Inc., Mark -ANDD. Richardson, William J. Richardson and Chris CROSS-MOTION FOR SUMMARY Evans, JUDGMENT Defendants. (Oral argument requested) v. No. CIV 04-0341 PHX RCB UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

25 for copyright infringement based on the alleged preparation of an unauthorized 26 arrangement of "The Big Apple" ("the arrangement") and the unauthorized copying and 27 distribution of that arrangement. [2nd Am. Compl., Count 1] The Academy has asserted 28 an affirmative defense under 17 U.S.C. § 412, challenging Plaintiff's claim to statutory
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damages and attorney fees "because Plaintiff did not register `The Big Apple' with the U.S. Copyright office before the alleged commencement of infringement."1 [The Academy's Answer, ¶ 60] Plaintiff now seeks summary judgment on this affirmative

defense, based solely on the assertion (at 2) that "[t]he sale in question occurred between December 19, 2002 and January 3, 2003," the dates of an invoice and purchase order for preparation of the arrangement. This argument is especially surprising because Plaintiff has expressly alleged that the unauthorized arrangement was "purchas[ed]" "in or around the summer of 2002," notwithstanding the fact that the subject purchase order and invoice were not issued until December 2002 and January of 2003. [2nd Am. Compl., ¶ 16, n.1] It is difficult to imagine a good faith basis by which these contradictory positions can be reconciled, suggesting that the subject motion was brought to harass or cause unnecessary delay or needless increase in the cost of litigation. In any event, as discussed more fully below, Plaintiff's motion is inconsistent on its face and can be summarily denied. Plaintiff is correct, however, that there are no issues of material fact with respect to the subject affirmative defense. Accordingly, the Academy cross-moves for summary judgment that Plaintiff is not entitled to either statutory damages or attorney's fees from the Academy pursuant to 17 U.S.C. § 412. The Academy's Response and Cross-Motion are fully discussed below and are supported by: (i) The Academy's Response to Plaintiff's Statement of Facts; and (ii) The Academy's Statement of Facts.

The Academy also generally denies the allegations against it because it had no involvement in the allegedly infringing activities at issue. [See, e.g., M. Richardson Decl., ¶ 7] However, this general denial is not relevant to the issue presently before the Court.
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Response and Cross-Motion Plaintiff's Motion is Fatally Flawed and Should be Denied.

The sole basis asserted by Plaintiff in support of his motion against the Academy is that the "allegations of infringement against the [Academy] concern its sale of a custom arrangement of The Big Apple and that `[t]he sale in question occurred between December 19, 2002 and January 3, 2002.'" [Motion at 2 (emphasis added)] This is a misstatement of both the law and Plaintiff's own complaint. Copyright infringement is defined as a violation of one of the exclusive rights set forth in 17 U.S.C. § 106. However, there is no exclusive right of "sale" under Section 106. Rather, the relevant exclusive rights (and those that are allegedly infringed by the Academy) are to prepare "derivative works," make "copies" and to "distribute" those copies. 17 U.S.C. § 106(1), (2) and (3). The seemingly academic distinction between distribution and sale is relevant here because, as Plaintiff knows and has expressly alleged, the Academy's allegedly infringing acts had to occur many months before the purchase order and invoice that Plaintiff now argues support his motion. For example: Plaintiff's complaint alleges that the Academy prepared an unauthorized derivative work (the unauthorized arrangement) and then copied and distributed that unauthorized derivative work to the Corona del Sol High School Marching Band ("CDSHS Band"). [2nd Am. Compl., Count 1] Plaintiff's complaint also alleges that the CDSHS Band began performing the unauthorized arrangement by September 5, 2002. [2nd Am. Compl., ¶ 20] Indeed, Plaintiff's motion papers also acknowledge that the CDSHS Band ¶ 2] began performing the arrangement by September 5, 2002. [Plaintiff's SOF,

Obviously, the alleged preparation, copying and distribution of the arrangement had to occur before those performances began.

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Plaintiff makes no effort to demonstrate when the Academy's alleged infringing activities actually began. Rather, he attempts to put-one-over on the Court by focusing on a so-called "sale"; a "sale" that he has expressly acknowledged post-dates the alleged infringement. [2nd Am. Compl., ¶ 16, n.1] Thus, Plaintiff has presented no evidence indicating when the Academy's alleged infringement actually began and his motion can and should be denied. B. In Any Event, the Alleged Infringement Commenced Long Before Copyright Registration, Precluding Statutory Damages and Attorney's Fees.

The Copyright Act expressly prohibits an award of statutory damages or attorney's fees for "any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work." 17. U.S.C. § 412 (emphasis added). "The Big Apple" was published at least as early as April 1, 1994.2 [Academy's SOF, ¶ 1] Therefore, to win on this defense the Academy need only show that the alleged infringements commenced prior to July 6, 2002, the earliest alleged registration date for "The Big Apple." [Plaintiff's SOF, ¶ 1; Academy's SOF, ¶ 2] There are three unambiguous dates by which the alleged infringement "commenced," any one of which precludes an award of statutory damages or attorney's fees under Section 412. First, preparation of the musical arrangement that Plaintiff has alleged is an unauthorized derivative work of "The Big Apple" was authorized by William D. Richardson in the spring of 2002. [Academy's SOF, ¶ 3] Of course, "authoriz[ing]"

Section 412 applies "to works of foreign and domestic origin alike." H.R. Rep. No. 1476, at 158 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5774. Therefore, it is not relevant that the Composition may have been published outside the United States. See Parfums Givenchy, Inc. v. C&C Beauty Sales, Inc., 832 F. Supp. 1378, 1393 n.13 (C.D. Cal. 1993).
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infringement is itself copyright infringement. 17 U.S.C. § 106. Hence, the complained of infringement must have commenced with this authorization. Second, actual preparation of the musical arrangement that Plaintiff has alleged is an unauthorized derivative work of "The Big Apple" commenced by the end of April, 2002. [Academy's SOF, ¶ 4] And third, preparation of the unauthorized arrangement the first week of June, 2002. [Academy's SOF, ¶ 5; M. Richardson Decl., ¶ 6]

was substantially complete, and the CDSHS Band began practicing that arrangement, by Even if the CDSHS Band Director's authorization of the arrangement is ignored, it

is still unassailable that the alleged infringement by the Academy began long before Plaintiff's registration of copyright, at least as early as either the date that Mark Richardson began preparing the arrangement (late April) or the date the band began playing the arrangement (first week of June). Accordingly, the Court should deny Plaintiff's motion and grant the Academy's cross-motion for summary judgment. C. Plaintiff Cannot Avoid § 412 by Arguing That Preparation, Copying and Distribution of the Arrangement Are Separate Infringements.

It is well settled that a series of separate infringements of a single work are but a single infringement for statutory damages and attorney's fees. Parfums Givenchy, Inc. v. C&C Beauty Sales, Inc., 832 F. Supp. 1378, 1393 (C.D. Cal. 1993) (granting summary judgment denying statutory damages and attorney's fees; holding that a single infringement commences with the first act of "copying, or creation" in spite of a later distribution "of the copies"); see also Singh v. Famous Overseas, Inc., 680 F. Supp. 533, 535-36 (E.D.N.Y. 1988) (defendant's copying, sale, and distribution created only one

infringement); Whelan Assocs., Inc. v. Jaslow Dental Lab, Inc., 609 F. Supp. 1325, 1331 (E.D. Pa. 1985) (denying attorney's fees and finding a single infringement when defendant copied and later distributed software). Indeed, the legislative history of the Act demonstrates that Congress expressly intended this result:

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A single infringer of a single work is liable for a single [statutory damage award], no matter how many acts of infringement are involved in the action and regardless of whether the acts were separate, isolated, or occurred in a related series. . . . Similarly, where the work was infringed by two or more joint tortfeasors, the bill would make them jointly and severally liable for [a single statutory damage award]. H.R. Rep. No. 94-1476, at 162 (1976). Accordingly, 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. The alleged infringement commenced prior to registration and, therefore, statutory damages and attorney's fees are precluded by 17 U.S.C. § 412.

Conclusion For the foregoing reasons, the Academy respectfully requests that the Court: (i) deny Plaintiff's motion for summary judgment on the Academy's affirmative defenses under 17 U.S.C. § 412; and (ii) grant the Academy's cross-motion for summary judgment pursuant to 17 U.S.C. § 412. Dated: August 18, 2005. PERKINS COIE BROWN & BAIN P.A.

that Plaintiff is not entitled to statutory damages or attorney's fees from the Academy

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

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