Vargas et al v. Pfizer Inc. et al

Filing 102

JOINT PRETRIAL STATEMENT. Document filed by Brian Transeau. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Ahrens, Julie)

Vargas et al v. Pfizer Inc. et al

Doc. 102

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

RALPH VARGAS and BLAND - RICKY ROBERTS, Plaintiffs, - V. PFIZER INC., PUBLICIS, INC., FLUID MUSIC, EAST WEST COMMUNICATIONS, INC., and BRIAN TRANSEAU p/k/a "BT", Defendants.

Case No.:

04 CV 9772 (WHP) ECF Case

[PROPOSED] JOINT PRETRIAL ORDER Plaintiffs Ralph Vargas and Bland-Ricky Roberts ("Plaintiffs") and Defendants Brian Transeau ("BT") and East West Communications ("Defendants") submit the following Pretrial Order. 1. 2. The full caption of this action appears above. The names and addresses of trial counsel are as follows: A. Plaintiffs Paul A. Chin LAW OFFICES OF PAUL A. CHIN 233 Broadway, 5th Floor New York , NY 10007 Telephone: [phone] B. Defendant Brian Transeau Anthony T. Falzone (admitted pro hac vice) David S. Olson (DO 4906) STANFORD LAW SCHOOL 559 Nathan Abbott Way Stanford, CA 94305-8610 Telephone: [phone] Facsimile: [phone]

Dockets.Justia.com

Alice C. Garber (admitted pro hac vice) Julie A. Ahrens (JA 0372) Christopher W. Keegan (admitted pro hac vice) KIRKLAND & ELLIS LLP 555 California Street San Francisco, California 94104-1501 Telephone: [phone] Facsimile: [phone] C. Defendant East West Communications, Inc. Eric M. Stahl DAVIS WRIGHT & TREMAINE LLP 2600 Century Square 1501 Fourth Avenue Seattle, Washington 98101-1688 Telephone: [phone] Facsimile: [phone] 3. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

§§ 1331 and 1338(a), as this is an action arising under the Copyright Act, 17 U.S.C. § 101, et seq. 4. The parties assert the following claims and defenses in this action: A. Plaintiffs

Plaintiffs assert that they own a valid copyright in the musical composition Bust Dat Groove (w/o ride) ("Bust Dat Groove") and the recording of the performance of that composition that is included on Plaintiffs' album Funky Drummer II. Plaintiffs further assert that Defendants have infringed plaintiffs' exclusive right to copy and make derivative works of the recording of Bust Dat Groove in violation of 17 U.S.C. §§ 106, 115 and 501 through the recording and distribution of Defendants' work Aparthenonia. Plaintiffs assert they are entitled to damages pursuant to 17 U.S.C. §§ 504(b)-(c) and 505. Plaintiffs assert that the settlement of their claims against Defendants Pfizer, Inc., Publicis, Inc. and Fluid Music is inadmissible at trial and that Defendants East West Communications and Brian Transeau are not entitled to reduce any judgment entered against them by the amount Plaintiffs received under its settlement with the other Defendants.

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B.

Defendants

Defendants deny that Plaintiffs have a valid copyright in the composition of Bust Dat Groove on the ground it is not subject to copyright protection due to lack of originality. Defendants deny they have infringed any copyrights Plaintiffs have in the composition or recording of Bust Dat Groove. Specifically, Defendants contend that they did not own or have access to Bust Dat Groove, that they did not copy Bust Dat Groove, and that they created Aparthenonia independently. See, e.g., 17 U.S.C. §114(b). Defendants further contend that even if Plaintiffs could prove copying, Defendants did not infringe Plaintiffs' copyrights because there is no substantial similarity between Aparthenonia and any protectable element of Bust Dat Groove. Defendants further contend that even if Plaintiffs can show copying and substantial similarity between Aparthenonia and any protectable element of Bust Dat Groove, any use of material from the recording that contains Bust Dat Groove was de minimis and thus protected by Fair Use. See 17 U.S.C. § 107. Defendants further contend that Plaintiffs have suffered no actual damages and that Plaintiffs have in any event been fully compensated for any damages they might be entitled to by virtue of the substantial settlement they have already received from other defendants in this matter. See 17 U.S.C. § 504. C. Claims Not To Be Tried

In their Amended Complaint, Plaintiffs allege that Defendants copied or otherwise misappropriated twenty other musical compositions contained on the albums Funky Drummer I and Funky Drummer II, in addition to Bust Dat Groove. See Second Amended Complaint ¶ 23. Defendants deny these allegations. Plaintiffs have agreed not to pursue these allegations, and have agreed not to assert, or introduce any evidence, that Defendants copied or otherwise misappropriated any composition or recording of any track other than Bust Dat Groove. Plaintiffs have further agreed that they will not assert, or introduce any evidence, that any work other than Aparthenonia infringes Plaintiffs' copyrights. 5. This case is to be tried to a jury. The parties expect that the trial of this matter

will require 7-10 trial days.

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6.

The parties have not consented to trial of this matter before a United States

Magistrate Judge. 7. 8. The parties have agreed and stipulated to the facts set forth in Exhibit A. The parties expect to present testimony from the following witnesses in their

respective cases in chief. Each party reserves the right to call witnesses from the other party's list should the party listing the witness choose not to call that witness to testify. A. Plaintiffs

Witness Ralph Vargas Bland-Ricky Roberts Matthew Ritter Ivan Rodriguez Dr. Steven Smith B. Defendants

Manner of Testimony Live Live Live Live Live

Witness Brian Transeau Carols Vasquez Mike DiMittia Anthony Ricigliano Dr. Richard Boulanger Rhys Moody Doug Rogers

Manner of Testimony Live Live Live Live Live Live Live

9.

The parties do not anticipate offering any deposition testimony in their respective

cases in chief unless any witness listed above becomes unavailable or otherwise unable to testify.

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10.

The exhibits Plaintiffs expect to offer in their case in chief are set forth in Exhibit

B, along with Defendants' objections. The exhibits Defendants expect to offer in their case in their case in chief are set forth in Exhibit C, along with Plaintiffs' objections.

Dated: October 30, 2006.

_/s/ Paul A. Chin___________________ Paul A. Chin LAW OFFICES OF PAUL A. CHIN 233 Broadway, 5th Floor New York , NY 10007 Telephone: [phone] Attorney for Plaintiffs RALPH VARGAS and BLAND-RICKY ROBERTS

Dated: October 30, 2006.

__/s/ Julie A. Ahrens__________________ Alice C. Garber (admitted pro hac vice) Julie A. Ahrens (JA 0372) Christopher W. Keegan (admitted pro hac vice) KIRKLAND & ELLIS LLP 555 California Street San Francisco, California 94104-1501 Telephone: [phone] Facsimile: [phone] Anthony T. Falzone (admitted pro hac vice) David S. Olson (DO 4906) STANFORD LAW SCHOOL 559 Nathan Abbott Way Stanford, CA 94305-8610 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant BRIAN TRANSEAU p/k/a "BT,"

Dated: October 30, 2006.

__/s/ Eric M. Stahl___________________ Eric M. Stahl DAVIS WRIGHT & TREMAINE LLP 2600 Century Square 1501 Fourth Avenue Seattle, Washington 98101-1688 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant EAST WEST COMMUNICATIOJNS, INC.

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