Vargas et al v. Pfizer Inc. et al

Filing 146

DECLARATION of Julie A. Ahrens in Support re: 141 MOTION for Attorney Fees and Costs.. Document filed by Brian Transeau. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit H part 2# 10 Exhibit I# 11 Exhibit J# 12 Exhibit K# 13 Exhibit L# 14 Exhibit M# 15 Exhibit N# 16 Exhibit O# 17 Exhibit P# 18 Exhibit Q# 19 Exhibit R# 20 Exhibit S# 21 Exhibit T# 22 Exhibit U# 23 Exhibit V# 24 Exhibit W# 25 Exhibit X# 26 Exhibit Y# 27 Exhibit Z# 28 Exhibit Z part 2# 29 Exhibit AA# 30 Exhibit BB# 31 Exhibit CC# 32 Exhibit DD# 33 Exhibit EE# 34 Exhibit FF)(Falzone, Anthony)

Vargas et al v. Pfizer Inc. et al

Doc. 146 Att. 1

EXHIBIT A

Dockets.Justia.com

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2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 II." though.

A. Q.

Between 1994 and '95. Okay. I am handing you what

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that help your recollection of when Funky Drummer Volume II was recorded? A. Q. Yes. After reviewing these documents

has been marked as Defendants' Exhibit 3, which is a copy of Plaintiff's Exhibit production pages Bates pages 13 and 14. Have you seen this before, Mr. Chin --

what is your best estimate of when Funky Drummer Volume II was recorded? A. Q. Between 1994 and '95. Do you see on Exhibit 3 that

sorry, Mr. Vargas? A. What was just given, this

certificate of registration? Q. Yes. Now I want to direct you

page 1, where it says "effective date of registration," it should be at the top of page 13? A. Q. A. Yes. I am looking at 13, not 15. Yes. January 27. No 1.

down to block 3.

This is a much easier copy

to read than Exhibit 2; right? A. Q. Yes. It is clearer.

It is not the same thing,

If you look in block 1 do you see

MR. CHIN: A. Q. 1995.

where it says "title of this work?" A. Q. Right yes. It says "Funky Drummer Volume

January 26.

For Exhibit 3 which is the

sound recording copyright registration, does it say "effective date of registration, January 26, 1995?" A. Q. Yes. Then for Exhibit 2 which is the

A. Q.

Yes. If you see down in 2A there is

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a little block that says "nature of authorship." recording." It says "asterisk, sound

composition registration, do you see where it says "effective date of registration, January

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A. Q.

Yes. Do you understand this to be

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27, 1995?" A. Q. Yes. So the sound recording

the copyright registration for the sound recording for Funky Drummer Volume II? A. Q. Yes. Then if we look back at

copyright was registered January 26? A. Q. Uh-huh. And composition was registered

Defendants' Exhibit 2, which is Bates pages 15 and 16, do you see where in that same block 2 as A where it says "nature of authorship," it says "music, drum rhythm, drum loops?" A. Q. Yes. Do you understand Exhibit 2 to

January 27; is that right? A. Q. Uh-huh. So based on these documents, is

it your understanding that Funky Drummer Volume II was recorded before January 26, 1995? A. Q. Yes. If you look in block 2A of

be the composition registration with the Copyright Office? A. Q. Yes. Then if we look down back to 3

Exhibit 3 Bates page 13 where it says "name of author" do you see what it says there? A. Q. A. Q. Yes. What does that say? It says JBR Records, Inc. Does that mean that JBR Records

now for a minute, the clearer one, at 3A, block 3A where it says "year in which creation of this work was completed," can you read it on that copy? A. Q. A. Q. Yes, I can. What year is that? It says "1994." Now that you've read that, does

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owns or owned the copyright in the sound recording for Funky Drummer Volume II? A. Q. Yes. And on the other Exhibit,

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you looking for? A. A certain looseness sound where

2 3 4 5 6 7 8 9 10 11 12 13 14 15 Objection. I think 16 17 18 19 20 21 22 23 24 25

the manufacturing house. to these records stores. mom and pop stores. Q.

We took it ourselves The one shops, the

when you do the roll that I did, it has a certain feel to it where you can just know from tuning and feel this is just right. Sort of like cooking, you know when it's right. That's the way I want it. Q. Just to follow up a little bit

When you say it was

manufactured in Brooklyn, what do you mean? A. They pressed the record and,

you know, put jackets on it and put the labels on it. Q. When you say press the record,

on obeying your Thirst and Wu-Tang Clan, did you ever threaten to sue either one of them? A. Q. Either one of them meaning -Let me break it down. Did you

does that mean on to vinyl? A. Yes. You know, they

manufactured the record, yeah. Q. Was Funky Drummer II

ever threaten to sue for Wu-Tang Clan's use of one of your tracks? MR. CHIN:

distributed on any other media than vinyl? A. vinyl. Q. A. Q. How about Funky Drummer I? Both. Always vinyl. No. The format was always

the testimony is his publisher dealt with it. A. say. That is what I was about to

She pretty much dealt with all of that. Q. Do you know if she threatened

Only distributed on vinyl.

to sue on your behalf? A. I know that she reached out to

They were never distributed on CDs? A. never did it. Q. A. Cassette tapes? No. We talked about doing that but

them and she gave them a time limit, if they didn't contact her that she would seek legal action, but they worked it out.

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2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as the -Roberts.

Q.

To your knowledge they worked

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Q.

So, how many copies of Funky

it out before any legal action? A. Q. commercial? A. Q. Same thing. After you had the DAT tape for Yes. How about with Sprite

Drummer II were pressed? A. As far as I can remember, 1,500 He

But then you'd have to ask Rick.

took care of all of that stuff. Q. How many were pressed of Funky

7 8 9 10 1,500.

Drummer Volume I? A. We had an initial pressing of

Funky Drummer Volume II, what did you do next with that tape? A. I handed it over to Rick

We sold out on that and got another I think that was it. You

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1,500 pressed up.

have to ask Rick on that one, too. what I remember. Q. recollection. A. Q. Yeah. Yeah.

But that's

Q.

And what happened next as far

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All I'm asking you is your best

A.

He was in control of that.

The

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record label owned it. Q. do you mean? A. It belongs to the record label When you say he owned it, what

When you were just talking,

about Funky Drummer Volume I in that last answer? A. twice, yeah. II. Q. So there was never a second The one that got pressed up I. II only got 1,500, Volume

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because it was put out on JBR Records. Q. So what happened next to

actually distribute the Funky Drummer Volume II? A. Well, II was manufactured I forget the name of

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pressing of Volume II? MR. CHIN: Objection. It is

somewhere in Brooklyn.

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important that he don't guess. him to guess.

I don't want

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Q.

Do you remember any of those

I want him to give his best If he is

distribution houses? A. Only a few. There was a lot That all falls in

estimate to his personal knowledge. guessing, I don't want him to guess. MR. OLSON: for is best estimates.

more that he took care of. his area. Q.

All we're asking

Since all we have in

Can you give me the names of

this case are people's estimates, I am entitled to them. MR. CHIN: Absolutely. You're

any you remember? A. There was a record store called

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Rock 'N Soul, Downstairs Records, Downtown Records. There was another record store, then

entitled to his best estimates. is different than best estimates. can agree on that. MR. OLSON: for is best estimates. MR. CHIN: Q. Okay.

But guessing I think we

the rest was distribution houses he had, that he went to. (Defendants' Exhibit 8 for identification, Distribution Lists Funky Drummer I and II, production numbers 000017.) Q. I am handing you what has been It bears

All I am asking

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Mr. Vargas, with regard to

Funky Drummer Volume II, was it pressed more than once, to your knowledge? A. II, I remember 15. Rick could

marked as Defendants' Exhibit 8.

Plaintiffs' Bates production number of 17. Could you read the title of the document at the top? A. Distribution Lists Funky

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have pressed more, that is why I said he would have the answers to that, more accurate answers than I would. department. Q. I understand that. All I am That was in his

Drummer I and II. Q. before? Have you seen this document

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asking about is your knowledge? A. Q. that. As far as you know there wasn't a second pressing of Funky Drummer Volume II? A. yes. Q. You said after it was pressed Yeah, as far as I can remember, 1,500 of II. So to your knowledge -- strike

2 3 4 5 6 7 8 9 10 11 12 document?

A. Q.

Yes. Did you help prepare this

A. Q.

Somewhat, yeah. Where did the information for

this document come from? A. information. Q. information? A. I guess he has the records or I happened to Where did he have the Initially Rick had most of this

you took it to mom and pop record stores; right? A. Q. A. Roberts. Q. A. Q. A. Q. And you? And me, yes. Anyone else? No. Other than distributing to mom Yes. You said "we," who is we? Rick Roberts, Bland-Ricky

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he did a lot of this himself.

be with him a few times, that's why I know of some of the places. Q. When you say he did a lot of

this, do you mean compiling this document Exhibit 8 -A. Q. A. Q. Oh, no. -- or do you mean distribution? Distribution. Plaintiffs recently produced

and pop record stores, was Funky Drummer Volume II distributed in any other way? A. Rick took it to different

this document with the column on the right which has a little bit of contact information for some of the entities on the left. Are you

distribution houses around the city.

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answer. A. Q. A. Q. A. Q. $100,000? A. Q. Could have been. I don't know. I would think so, yeah. Was it less than $100,000? I don't know. You can't say whether it was? I can't say with certainty. So it could have been more than

2 3 4 5 6 7 8 9 10 11 12 13 MR. CHIN: Objection. Instruct 14 15 MR. OLSON: What is the basis 16 17 This is highly 18 19 20 21 22 23 If you want to send a written 24 25

subject him to liability.

So I am withdrawing

my instruction not to answer. Q. Mr. Vargas. Let me ask the question again, How did you account for sales

from Funky Drummer Volume II on your taxes? A. Q. I did not. At the time did you think there

was anything you were required to do to account for sales on your taxes? A. Q. I wasn't aware. Now, if you sold, say you made

How did you account on your

taxes for the sales from Funky Drummer Volume II?

profits of $100,000 from Funky Drummer Volume II, it would be safe to say you would owe some taxes; isn't it? MR. CHIN: hypothetical. A. Q. Hypothetically speaking, yeah. Did you file income tax returns Objection, calls for

not to answer.

for the instruction? MR. CHIN:

irrelevant and the information, the information or whatever answer he may or may not give could subject him to criminal problems. I am not going to let him answer

from '95 through the end of 90s? MR. CHIN: relevance. A. You can answer. Yeah, I filed taxes on Objection,

that question.

everything with the exception of the vinyl stuff.

interrogatory, we'll decide then.

I am not

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letting him answer that in a deposition. MR. OLSON: So, are you

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Q.

When you made profits from

playing with Total Remix, did you record that income on your income taxes? MR. CHIN: relevance. A. ID number. Q. Do you have an accountant who Yes, I have a separate tax Objection,

instructing him to take the Fifth Amendment, is that what you are saying? MR. CHIN: I am instructing

him to take the Fifth Amendment because I don't know what the answer is going to be.

you want me to step outside with him and find out whether or not his answer could subject him to criminal liability, I will do that. MR. OLSON: Yeah, I would be

helps you with your taxes? MR. CHIN: relevance? A. I don't have a separate. Just Objection,

interested if there is a reasonable apprehension of prosecution. Why don't we

a regular, you know, tax people. Q. Who did your taxes, say in

take a quick break and you can confer. MR. CHIN: Okay. Going off the

VIDEOGRAPHER: record. The time is 3:16. (Recess taken.) VIDEOGRAPHER: the record. The time is 3:21. MR. CHIN:

MR. CHIN: relevance? A. Q. A. Q. H&R. H&R Block? Yes.

Objection,

We are back on

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Okay.

I have

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Did you tell H&R Block that you

spoken with my client and discussed the question, the last question with him. feel satisfied that his answer will not And I

had proceeds from sales of Funky Drummer Volume II that you needed to account for? A. No.

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really don't. Q. To your knowledge did Bust Dat

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from Funky Drummer II? A. Q. A. tracks. Q. Did anyone call wanting to use Yeah. Which tracks? I don't remember the exact

Groove ever receive any radio airplay? A. Q. I've never heard it, no. To your knowledge did Bust Dat

Groove ever receive any TV airplay? A. Q. Other than the Celebrex. Okay. Other than allegedly in

Bust Dat Groove? A. I don't know. Sometimes they

the Celebrex ad, to your knowledge did Bust Dat Groove ever receive any TV airplay? A. As far as I know. Sometimes,

would call her directly, so... Q. I am just asking with reference

to the calls you stated you received, did anyone call with regard to Bust Dat Groove? A. We didn't get into even finding

you know people use it and I'm not aware of it so I don't know. Q. A. Q. is? A. Q. I don't know. Let me ask it one more time As far as you I'm just asking -As far as I know. As far as you know the answer

out what track they wanted to use because I would direct them to Jane Peterer. She was

handling all my publishing work, so... Q. Did you follow up with

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Ms. Peterer after you directed people to her? A. inquiring. Yes. And she told me who was

just to get a yes or no answer. know -- strike that.

But we didn't get into what track

or anything like that, you know. Q. Did any of those inquiries lead

Other than allegedly in the Celebrex commercial, as far as you know did Bust Dat Groove ever receive any TV airplay?

to someone paying for license to the track? A. As far as I know, no.

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A. Q.

I don't know. Did Mr. Roberts ever give you

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Q.

And you stated that you

intended this album to be for hip-hop producers, among other people; correct? A. Q. Yes. And you hoped that they would

any kind of written accounting for profits from the Funky Drummer II album? A. Q. No. Did you ever license any tracks

listen to your tracks and license the tracks; is that right? A. Q. Yes. So you wanted them to use the

from the Funky Drummer II album? A. Q. No. Do you know if anyone ever

licensed any tracks from the Funky Drummer II album? MR. CHIN: A. Q. Objection.

tracks in albums or music they would be doing; is that correct? A. Q. Yes. But you wanted them to pay you

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I don't know. Did you try to license tracks

for the right to do that; correct? A. Q. Exactly. Did you give any copies of

from the Funky Drummer II album? A. I didn't personally, but maybe

Jane Peterer did. Q. Do you have any knowledge of

Funky Drummer II away to try to encourage people to use your tracks? A. We gave very few out. Very

any attempts she made to license tracks from the Funky Drummer album? A. No. But I got personal phone

Because it was expensive for us. Q. So, under plan that you had,

calls myself from people that wanted to use it and I would direct them to Jane Peterer. Q. People who wanted to use tracks

you expected, say, hip-hop producers to buy your album; correct? A. Absolutely. Yes.

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