Don Henley et al v. Charles S Devore et al

Filing 80

DECLARATION of Hal Poret in support of MOTION for Partial Summary Judgment as to liability for copyright and Lanham Act claims 57 SUPPLEMENTAL DECLARATION filed by Plaintiffs Mike Campbell, Don Henley, Danny Kortchmar. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Charlesworth, Jacqueline)

Don Henley et al v. Charles S Devore et al

Doc. 80

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MORRISON & FOERSTER LLP JACQUELINE C. CHARLESWORTH (pro hac vice) [e-mail] CRAIG B. WHITNEY (CA SBN 217673) [e-mail] TANIA MAGOON (pro hac vice) [e-mail] 1290 Avenue of the Americas New York, New York 10104 Telephone: [phone] Facsimile: 212.468.7900 PAUL GOLDSTEIN (CA SBN 79613) [e-mail] 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: [phone] Facsimile: 650.327.0811 Attorneys for Plaintiffs DON HENLEY, MIKE CAMPBELL and DANNY KORTCHMAR UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DON HENLEY, MIKE CAMPBELL and DANNY KORTCHMAR, Plaintiffs, v. CHARLES S. DEVORE and JUSTIN HART, Defendants. Case No. SACV09-0481 JVS (RNBx) SUPPLEMENTAL DECLARATION OF HAL PORET IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT Date: June 1, 2010 Time: 10:00 A.M. Ctrm: Hon. James V. Selna

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SUPPLEMENTAL DECLARATION OF HAL PORET ISO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT (SACV09-0481 JVS (RNBx))

Dockets.Justia.com

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I, Hal Poret, pursuant to 28 U.S.C. § 1746, hereby declare: 1. This declaration is being submitted in further support of Plaintiffs' motion for partial summary judgment. I have personal knowledge of the following facts and, if called upon as a witness, could and would competently testify about the matters stated herein. 2. I have personally designed, supervised and implemented nearly 300 consumer surveys concerning consumer perception, opinion and behavior. Over 150 of these surveys have concerned consumer perception relevant to the types of issues regulated by the Lanham Act. I have also testified as an expert witness regarding the results of these surveys on numerous occasions. My surveys and expert testimony have always been found admissible in court. 3. The survey I designed for this case was based on the Eveready survey format, which, in my experience, is one of the most common and highly regarded survey techniques for testing likelihood of confusion. The Eveready format involves exposing respondents to the allegedly infringing material and asking questions to see whether the respondent identifies or references the plaintiff in connection with the material. The key feature of the Eveready format is that the plaintiff's name is never mentioned to survey respondents; respondents must think of the plaintiff of their own. Accordingly, respondents can only indicate confusion if they think of the plaintiff on their own when viewing the allegedly infringing material. When applied to a false endorsement claim, an Eveready survey asks a series of open-ended questions designed to determine whether respondents believe the defendant's material (in this case, Defendants' Hope and Tax Videos) was approved by or affiliated with the plaintiff. The Eveready approach commonly asks open-ended questions, followed by probes and/or closed-ended questions to clarify or further understand respondents' perceptions. 4. My survey in this case followed this Eveready format. It consisted of three parts: screening questions, open-ended questions and a closed-ended question. As I explained in my previous declaration in support of Plaintiffs' motion, the screening
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SUPPLEMENTAL DECLARATION OF HAL PORET ISO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT (SACV09-0481 JVS (RNBx))

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questions were designed to identify prospective viewers of the Defendants' videos who have an understanding that Don Henley is the artist whose music is used in the videos. This was necessary because surveying individuals who do not understand the music to be Henley's would not reveal whether or not the videos are confusing or misleading. I included an analysis of the responses to the open-ended and closed-ended questions in my previous declaration, and a more detailed analysis is set forth in my expert report attached as Exhibit 1 to my previous declaration. 5. I have reviewed the portion of Defendants' Memorandum in Opposition to Plaintiffs' Motion for Partial Summary Judgment ("Def. Op.") discussing my survey and report, as well as the Declaration of Suzanne B. Shu ("Shu Decl."). I believe the analysis of the survey results included in those papers is inaccurate and misleading. 6. Defendants claim that "3% of the respondents said that they believed Henley endorsed or approved Defendants' videos." (Def. Op. at 21; Shu Decl. ¶ 6.) This figure is incorrect. It is unclear how Defendants determined that "3% of the respondents said that they believed Henley endorsed or approved Defendants' videos," but it could not have been based on the results of my survey, which does not support such a figure. The correct figure based on the survey data is 23%. 7. The portions of testimony quoted in Defendants' opposition brief (and Shu's declaration) regarding 3% being a "low response rate" were not in reference to the number of respondents who named Don Henley as a person who endorsed or approved Defendants' videos. (In addition, certain statements falsely attributed to me were actually statements made by Defendants' counsel at my deposition.) Rather, the quoted testimony references the 3% of respondents who identified Barack Obama as a person who endorsed or approved the Hope video. I cited this 3% figure to gauge the level of "noise" in the survey, which, as I stated in my report, is the tendency of the survey to cause respondents to name Henley for reasons other than a genuine belief that he endorsed the videos or authorized the use of his music in the videos. When compared to the 23% of respondents who named Henley in response to open-ended questions (not
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3%, as Defendants falsely state), the 3% of respondents who named Obama represents a small percentage, and thus I was able properly to conclude that the level of survey noise was minimal. 8. Defendants also include a chart in their brief that purports to list the answers to question 7b in the survey, which is just one of nine open-ended questions in the survey. Looking at respondents' answers to question 7b alone, Defendants claim that 20 respondents whom I included as part of the 55 respondents who were confused as to Henley's association with Defendants' videos were improperly counted. This analysis is simply wrong. It is inappropriate to focus on only a single answer and to ignore the other answers where respondents expressed relevant opinions. 9. By isolating the responses to a single question ­ and then claiming that the answer to that one question does not support my conclusion because the respondent did not name Henley ­ Defendants ignore the fact that all of these respondents identified Henley in a different answer. For example, Defendants argue that respondent 265 in Defendants' chart (which was actually respondent number 1342 in the survey) should not have been considered as mistakenly believing that Henley gave permission or authorization for the use of his music in Defendants' videos based on the respondent's answer to Question 7b. (Defs. Op. at 22-23.) Defendants, however, ignore this respondent's answer to a prior question stating his belief that permission or authorization was given for the music in the Hope Video "because he [DeVore] used the song Boys of Summer by Don Henley in this video." Defendants omitted these explicit references to Henley from their chart. 10. Similarly, respondent 162 in Defendants' chart (respondent number 885 in the survey) stated that she believed permission or authorization was given for All She Wants to Do is Dance (which she identified as a Henley song) because "it was for his original song that they changed the lyrics ... they are using the song, just a different mix and words." When asked who provided permission or authorization to use Henley's song, the respondent answered, "him." Defendants include only the response "him" in
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their chart and conclude that this respondent did not identify Henley. But this is because Defendants deleted the portion of her response where she expressly named "don henleyt [sic]" and the portion of her response where she explained that it was his original song used in the video. 11. Even in the example specifically called out by Defendants in their brief, respondent 97 in Defendants' chart (number 418 in the survey) stated in response to open-ended questioning that permission or authorization was obtained by DeVore for "the copyrighted music" from "the person who owns the song." When later asked to identify the artist whose song was used, the respondent stated, "don henly [sic]." 12. To further demonstrate the misleading nature of Defendants' critique, I attached as Exhibit 1 a chart that shows all of the relevant responses from the 26 respondents (23% of the total) who evidenced confusion in response to open-ended questions. Because Defendants' critique in their brief is focused on the open-ended questions, the chart does not include the additional 29 respondents (25% of the total) whose response to the closed-ended question in the survey indicated confusion. 13. In my professional opinion in designing and analyzing hundreds of surveys on consumer perception and opinion, each of the respondents listed in the chart evidenced actual confusion that Henley endorsed the Defendants video(s) or authorized the use of his music in the video(s). 14. In paragraph 14 of Shu's declaration, she states that she believes my survey "suffered from methodological errors that tainted the data [I] received." I addressed these supposed criticisms at my deposition, and demonstrated why they are unfounded. I therefore incorporate that portion of my deposition testimony, attached hereto as Exhibit 2, into this declaration.

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SUPPLEMENTAL DECLARATION OF HAL PORET ISO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT (SACV09-0481 JVS (RNBx))

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I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on this 17th day of May, 2010.

Hal Poret

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SUPPLEMENTAL DECLARATION OF HAL PORET ISO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT (SACV09-0481 JVS (RNBx))