Vargas et al v. Pfizer Inc. et al

Filing 87

DECLARATION of Christopher Keegan in Support re: 85 SECOND MOTION for Summary Judgment.. Document filed by Brian Transeau. (Attachments: # 1 Exhibit Ex B# 2 Exhibit Ex C# 3 Exhibit Ex D# 4 Exhibit Ex E# 5 Exhibit Ex F# 6 Exhibit Ex G# 7 Exhibit Ex H# 8 Exhibit Ex I# 9 Exhibit Ex J part 1# 10 Exhibit Ex J part 2# 11 Exhibit Ex K# 12 Exhibit Ex L# 13 Exhibit Ex M# 14 Exhibit Ex N part 1# 15 Exhibit Ex N part 2# 16 Exhibit Ex O# 17 Exhibit Ex P# 18 Exhibit Ex Q# 19 Exhibit Ex R# 20 Exhibit Ex S# 21 Exhibit Ex T# 22 Exhibit Ex U# 23 Exhibit Ex V)(Ahrens, Julie)

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Vargas et al v. Pfizer Inc. et al Doc. 87 Att. 6 EXHIBIT G is~-ci~a UNITED STATES DISTRICT COURT SOUTHERN DISTRICT NEW YORK - -------------------------------------------------------------- RALPH VARGAS and BLAND-RICKY ROBERTS, Plaintiffs, -againstPFI[ZIER,INC., PUBLICIS, INC., ]FLUID MUSIC, EAST WEST COMMUNICATIONS, INC. and BRIAN TRANSEAU p/k/a "BT', Defendants. Case No. 04 CV 9772 (WHP) : : DECLARATION OP BRIAN TRANSEAU I, BRIAN TRANSEAU, declare as follows: 1. I am a defendant in the above-captioned case. I make this decla~ation based on ) peIsonal cf facts hereinover of and upon knowledgeset the fo~h Iam L8 age, if years calledto testify, I could and would testify competently to the matters stated herein. 2. I am a musician, composer, and producer, and perform professionally under the name BT. I am classically trained, attended the Berklee College of Music in Boston, and have worked in a variety of genres, but I am primarily la~own as an electronic music artist. As a musicianand composer,I have released five full-lengthalbums since 1996, as well as dozens of singles and remixes. My songs have appeared on numerous popular movie soundtracks, and I have created the score for several fi~ll-length feature movies, including Monster and The Fasl and The Furious. As a producer and remixer, I have collaborated with many popular recording artists, including, among others, Madonna, Sting, Peter Gabriel, Tori Amos, Sarah McLachlan, Seal, Depeche Mode, and Lenny Kravitz. ~FI IFx1010vIC;R301~1 1 3. I also have released two CD "sound libraries," including, in 2001, one entitled Breakzfi·om Nu S~c~ol the ~Breakz"). In contrast to the body of work describedin the preceding paragraph,which I consider highly creative and original,the tracks on Break~are not meant to be listened to as musical works in their own right, and Br~akz has never been marketed toward the music-purchasing public. Rather, Br~akzis a library of hundreds of separate sounds, with each track consistingofa drum loop - that is, a short drum pattern "looped," or identicallyrepeated, two to four times. Breakz is used only by other musicians and producers, who incorporate one or more of the tracks found on the CD as tempo or background for their own musical works. In their own right, the individualtracks on BrealcT not music; nor are they compositionsor are songs. 4. One of the tracks on Breakz is a basic drum loop called Aparthcnonia. I am informedthat the plaintiffs in this litigationhave alleged that Aparrhenoniawas incorporated into a commercial for the drug Celebrex. I also am informed that the plaintiffs have alleged that the commercial infringes on a copyrighted work by plaintiffs known as "Bust DaCGroow Without Rid~" ("BT~'), from a sample CD entitled "Funky Drumm~r, f/olume II." 5. I independently created Aparrhenonia, and all the tracks on ~ea~z, using softwareapplications,drum machines,and a computer. Aparrhenoniais a prog-rammed beat, with the percussionelements originating fiom an off-the-shelfmusic generationcomputer programknown as PropellerheadReason. I mixed and equalizedthe elementsofAparlhenonia on my own in Logic Audio 6. Aparthenonia is not a recording of any other work and contains no "sampling" of any other sound recording. In particular,Aparfhenoniais not a recordingof, or in any way based on, BTG. Prior to this litigation, I had never heard ofRaiph Vargas or Bland-Ricky Roberts (the 9Fd. 1N;lOlhri I;IL?al~l 3 namedplaintiffs in this action), or JBR Music Group. Prior to this litigation, I had never heard of, listened to, or possesseda copy ofBTC;or Funky~Duummer, Yo2ume I have no knowledge I~ that these works were even in circulation at the time Aparthenonia was created, and in fact I have reasonto suspect they are not readily available:I and my representativesattemptedto locate a copyof theseworkswhenplaintiffs initiated litigation, wereunableto do so despitea this and diligentsearch. In any case, I certainly had no awarenessof or access to BTG or ~un~y Drummer, Yolume Ilwhen I created Aparthenonia. 7. Apauthenoniaconsists ofa commondrum beat that is a standard in popular music, and that is among the first drum beats taught to beginningdrummers. The pattern, combination ofpercussion elements, rhythmsin Aparlhenonia be foundin thousands musical and can of works, dating back decades. 8. 1do not understandhow the plaintiffs,or anyone, could claim to "own" a simple drum loop such as BTG,or to have the right to exclude other musiciansfrom using or "composing" similarbeats. Sucha claimis the equivalent asserting exclusive of the rightto sing the lyrics,"babyI loveyou" - it wouldplacea basicbuilding blockfor popularmusicoff limits to other musicians. I declare under penalty ofpejury under the laws of the United States of America that the foregoing is true and correct. ExecutedXat~ ofJune atLos this day 2005 Angeles, California. Brian ~F4 IN;1010v1~11301~1 7

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