Vargas et al v. Pfizer Inc. et al

Filing 93

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. 93

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. [As of close of business October 12, 2006, Plaintiffs have not provided their sections of the pretrial order despite repeated requests from Defendants. Defendants request the opportunity to amend or modify this proposed pretrial order if Plaintiffs are permitted to contribute to it at a later date.] 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]

Dockets.Justia.com

B.

Defendant Brian Transeau Anthony T. Falzone (pro hac vice application forthcoming) David S. Olson (DO 4906) STANFORD LAW SCHOOL CYBERLAW CLINIC 559 Nathan Abbott Way Stanford, CA 94305-8610 Telephone: [phone] Facsimile: [phone] Alice C. Garber (pro hac vice) Julie A. Ahrens (JA 0372) Christopher W. Keegan (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

B.

Defendants

The allegedly copyrighted material in this suit is a short sound recording entitled, Bust dat Groove (w/o ride) ("BDG"), a one-bar drum track that appeared on Plaintiffs' album Funky Drummer Vol. II ("FD II"). Defendants deny that Plaintiffs have a valid composition copyright in BDG on the ground that the work is not original, and not subject to copyright protection.

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Moreover, Defendants have not copied any aspect of BDG. Copying the sound recording BDG would have been a legal impossibility because Defendants did not ever possess or have any access to BDG. There is no evidence in this case that FD II or BDG was ever widely distributed, a commercial success or readily available. Nor is there any evidence connecting Plaintiffs to Defendants through which Defendants could have gained access to Plaintiffs' work. Defendant Brian Transeau created the musical drum beat Aparthenonia on the opposite coast from Plaintiffs, many years after the limited release of FD II, using his computer and an a collection of sounds from a commercially available music-generation software program known as Propellerhead Reason. As such, even if the drum beats in Aparthenonia sound like those in BDG, Mr. Transeau's independent creation of Aparthenonia cannot be copyright infringement as a matter of law. See 17 U.S.C. § 114(b). Defendants 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 BDG. Defendants contend that even if Plaintiffs can show copying and substantial similarity between Aparthenonia and any protectable element of BDG, any use of material from the recording that contains BDG was de minimis and thus protected by fair use. See 28 U.S.C. § 107. Defendants further contend that their actions were innocent and non-willful. There is no evidence in this case (other than Plaintiffs' speculation) that Plaintiffs have suffered any actual damages because of the alleged infringement. Likewise, there is no reliable evidence that any profits of the Defendants are attributable to the alleged infringement. Therefore, Plaintiffs are not entitled to any amount of actual damages in this matter. See 17 U.S.C. Sec. 504(b). Moreover, Plaintiffs have already received a settlement in this action from three other Defendants (Pfizer, Inc., Publicis, Inc., and Fluid Music) that Plaintiffs claimed were jointly liable for the same act of alleged copyright infringement at issue here. Accordingly, Plaintiffs have been fully compensated for any damages they allege, as they already have recovered more than they are entitled to under the Copyright Act's actual damages/profits remedy (17 U.S.C. sec. 504(b)) and the maximum they would be entitled to in statutory damages -3-

(17 U.S.C. sec. 504). Further, should the jury award any damages, Defendants would be entitled to an offset of the amount Plaintiffs already have recovered from the other jointly and severally liable defendants. Claims not to be tried: Plaintiffs have agreed they will not pursue their allegations that Defendants have infringed the copyright in twenty different musical compositions created by Plaintiffs, as alleged in Plaintiffs' Second Amended Complaint, paragraph 23. Plaintiffs have agreed not to introduce any evidence regarding alleged infringement of any works other than BDG, including any allegations of infringement of other tracks from Plaintiffs' albums Funky Drummer Vol. I or FD II. Plaintiffs have agreed further that they will not introduce allegations of other supposed infringing works as evidence to support Plaintiffs' allegation that Defendants violated their copyright in BDG or for any other purpose. 5. This case is to be tried to a jury. The parties expect that the trial of this matter

will require five to seven trial days. 6. The parties have not consented to trial of this matter before a United States

Magistrate Judge. 7. The parties have agreed and stipulated to the facts set forth in Exhibit A.

[Although Defendants shared their stipulated facts with Plaintiffs' counsel on Friday October 6, 2006, as of close of business October 12, 2006, Plaintiffs have not commented on Defendants' facts.] 8. 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

Manner of Testimony

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B.

Defendants

Witness Brian Transeau Carols Vasquez Mike DiMittia Anthony Ricigliano Dr. Richard Boulanger Rhys Moody Doug Rogers 9.

Manner of Testimony Live Live Live Live Live Live Live

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. [As of close of business October 12, 2006, Plaintiffs have not provided their list of exhibits to Defendants' counsel.] The exhibits Defendants expect to offer in their case in their case in chief are set forth in Exhibit C, along with Plaintiffs' objections. [Although Defendants have shared their list of exhibits with Plaintiffs' counsel, as of close of business October 12, 2006, Plaintiffs have not objected to Defendants' exhibits.] Dated: October 12, 2006_________ _______________/s________________ Julie A. Ahrens (JA 0372) Alice C. Garber (pro hac vice) Christopher W. Keegan (pro hac vice) KIRKLAND & ELLIS LLP 555 California Street San Francisco, California 94104-1501 Telephone: [phone] Facsimile: [phone] Anthony T. Falzone (admission pending) 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 12, 2006___________ ______________/s__________________ 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. Dated:______________________ _____________________________________ 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 -6-