Perfect 10 Inc v. Google Inc et al

Filing 441

DECLARATION of Melanie Poblete In Support Of MOTION for Summary Judgment as to Copyright Infringement #436 filed by Plaintiff Perfect 10 Inc. (Mausner, Jeffrey)

1 Jeffrey N. Mausner (State Bar No. 122385) Law Offices of Jeffrey N. Mausner 2 Warner Center Towers 3 21800 Oxnard Street, Suite 910 Woodland Hills, California 91367-3640 4 Email: [e-mail] Telephone: [phone] Facsimile: [phone] 6 Attorneys for Plaintiff Perfect 10, Inc. 7 8 9 10 11 Perfect 10, INC., a California corporation, 12 Plaintiff, v. 13 14 GOOGLE, INC., a corporation, 15 16 18 19 20 21 22 23 24 25 26 27 28 Declaration of Melanie Poblete in Support of Perfect 10's Motion for Summary Judgment and Summary Adjudication Against Google Defendant. ________________________________ Case No. CV 04-9484 AHM (SHx) Consolidated with Case No. CV 05-4753 AHM (SHx) DECLARATION OF MELANIE POBLETE IN SUPPORT OF PERFECT 10'S MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION AGAINST GOOGLE BEFORE JUDGE A. HOWARD MATZ Date: August 17, 2009 Time: 10:00 a.m. Place: Courtroom 14, Courtroom of the Honorable A. Howard Matz Discovery Cut-Off Date: None Set Pretrial Conference Date: None Set Trial Date: None Set UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

17 AND CONSOLIDATED CASE.

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I, Melanie Poblete, declare as follows: 1. I am employed by Perfect 10, Inc. and the Law Offices of Jeffrey N.

3 Mausner. I attended the University of California, Santa Cruz for a Bachelor of Arts 4 degree in Legal Studies, which I am in the process of completing. For 6 years, I have 5 worked in the legal field assisting attorneys in pre-trial litigation, discovery, and in 6 arbitration hearings and trials. I have extensive knowledge of the images, copyright 7 registrations, and deposit materials that are relevant to Perfect 10's infringement claims 8 in this case. Unless otherwise stated, I have direct and personal knowledge of the facts 9 set forth herein and, if called as a witness, could and would competently testify thereto. 10 I have carefully compared the infringed images referenced in the Declaration of Dr. 11 Norman Zada in Support of Perfect 10's Motion for Summary Judgment ("Zada 12 Declaration"), filed concurrently, and matched them to images owned by Perfect 10 13 and contained in deposit materials copyrighted by Perfect 10 with the United States 14 Copyright Office. 15 2. I have verified that Perfect 10 has in its deposit material for copyright 16 registrations filed with the U.S. Copyright Office, over 19,000 unique images. In this 17 Declaration, I will reference images contained in exhibits to the Zada Declaration that 18 constitute Perfect 10's "Sample" of twelve images. The twelve images referenced in 19 this Declaration which constitute Perfect 10's "Sample" are contained in deposit 20 materials for Perfect 10 copyright registrations with the U.S. Copyright Office. 21 23 24 25 26 27 28 3. Filed with the Zada Declaration as Exhibit 9, is a computer disk that Deposit Materials: Each PDF file in this folder is named by registration number and contains the deposit material associated with that registration. Deposit Materials for each of the 12 images in the Sample are included in this sub-folder. With the exception of one sample image of Amy Weber, the deposit materials for each of the other eleven sample images are copies of Perfect 10 Magazines which have been registered at the Copyright Office and which -1Declaration of Melanie Poblete in Support of Perfect 10's Motion for Summary Judgment and Summary Adjudication Against Google 22 contains a folder, "The Sample." Within that folder, are sub-folders, as follows:

1 2 3 4 5 6 7 8 9 10 11 12 13 14

contain that image. Images: Each JPG file in this folder contains a Perfect 10 image and is named first by Model, then by the registration number for that image. Each image was obtained by copying the image from the registration deposit material. Registration Certificates: Each PDF file in this sub-folder is named by registration number and contains the registration certificate associated with that registration. Registration certificates for each of the 12 images in the Sample are included in this sub-folder. Work Made for Hires & AoRs: Each PDF is named by photographer and contains the work made for hire agreement and/or assignment of rights agreement associated with that photographer. Work made for hire/assignment of rights agreements covering each of the 12 images in the Sample are included in this sub-folder. 4. Page 1 of Exhibit 23 to the Zada Declaration contains an image of Anna

15 Tarson that appears in Perfect 10 Magazine, Vol. 5, No. 2, and has been registered at 16 the Copyright Office under Registration No. TX 5-452-254. That image also appears 17 as a thumbnail on Page 2 of Exhibit 49 (marked by a green check). 18 5. Page 3 of Exhibit 36 to the Zada Declaration contains an image of Ashley 19 Degenford that appears in Perfect 10 Magazine, Vol. 1, No. 5, and has been registered 20 at the Copyright Office under Registration No. TX 4-556-475. This image also 21 appears as a smaller image on Pages 1-2 of Exhibit 36 (first picture at the top left). 22 6. Page 3 of Exhibit 33 to the Zada Declaration contains an image of Marisa 23 Miller that appears in Perfect 10 Magazine, Vol. 6, No. 5, and has been registered at 24 the Copyright Office under Registration No. TX 6-114-746. That image also appears 25 on Page 3 of Exhibit 34. 26 7. Page 4 of Exhibit 8 to the Zada Declaration contains a check-marked 27 image of Maya Rubin that appears in Perfect 10 Magazine, Vol. 1, No. 2, and has been 28 registered with the Copyright Office under Registration No. TX 4-556-511. -2Declaration of Melanie Poblete in Support of Perfect 10's Motion for Summary Judgment and Summary Adjudication Against Google

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Page 5 of Exhibit 17 to the Zada Declaration contains an image of Monika

2 Zsibrita that appears in Perfect 10 Magazine, Vol. 2, No. 2, and has been registered at 3 the Copyright Office under Registration No. TX 4-813-355. That image also appears 4 on Page 1 of Exhibit 15 as the first and third thumbnail. 5 9. Page 2 of Exhibit 31 to the Zada Declaration contains another image of 6 Monika Zsibrita that appears in Perfect 10 Magazine, Vol. 2, No. 2, and has been 7 registered at the Copyright Office under Registration No. TX 4-813-355. That image 8 also appears on Page 2 of Exhibit 23, Page 1 of Exhibit 31 (the top left image), Pages 1 9 and 8 of Exhibit 32, and Pages 2 and 4 of Exhibit 40. 10 10. Page 9 of Exhibit 5 to the Zada Declaration contains a check marked 11 image of Natalia Sirocka that appears in Perfect 10 Magazine, Vol. 1, No. 6, and has 12 been registered with the Copyright Office under Registration No. TX 4-556-541. 13 11. Pages 5-6 of Exhibit 20 to the Zada Declaration contain an image of Talia 14 Harvalik that appears in Perfect 10 Magazine, Vol. 2, No. 2, and has been registered at 15 the Copyright Office under Registration No. TX 4-813-355. That image also appears 16 on Page 2 of Exhibit 6 and on Pages 7-8 of Exhibit 26. 17 12. Pages 1 and 3 of Exhibit 40 to the Zada Declaration contain an image of 18 Vibe Sorenson that appears in Perfect 10 Magazine, Vol. 2, No. 1, and has been 19 registered at the Copyright Office under Registration No. TX 4-812-575. This image 20 also appears on Page 2 of Exhibit 15 (bottom image), Pages 3-4 of Exhibit 17, Page 9 21 (marked by green check) of Exhibit 41, Page 6 of 42 (left image on third row) and on 22 Pages 1-9 of Exhibit 43. 23 13. Pages 5 and 11 of Exhibit 28 to the Zada Declaration contain an image of 24 Zita Gorocs that appears in Perfect 10 Magazine, Vol. 6, No. 3, and has been registered 25 at the Copyright Office under Registration No. TX 6-058-397. This image also 26 appears on Page 1 of Exhibit 6, and on Page 5 of Exhibits 29 and 30. 27 14. Page 3 of Exhibit 23 to the Zada Declaration contains an image of Zoya 28 Konyieva that appears in Perfect 10 Magazine, Vol. 3, No. 4, and has been registered -3Declaration of Melanie Poblete in Support of Perfect 10's Motion for Summary Judgment and Summary Adjudication Against Google