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 Att. 1

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

JOINT PRETRIAL ORDER EXHIBIT A STIPULATED FACTS The parties agree and stipulate to the following facts: 1. 2. Plaintiff Ralph Vargas is a drummer. Ralph Vargas created Bust Dat Groove (w/o ride) ("BDG") and registered the

copyright to the composition of BDG. 3. 4. BDG is a one-bar percussion pattern that is looped and repeats. Ralph Vargas recorded a performance of BDG some time in 1994 or early 1995.

Ralph Vargas played BDG live in the studio using only a bass drum, snare drum and hihat. This recording of BDG was included on the album Funky Drummer Vol. II ("FD II"). 5. The composition BDG was not recorded anywhere by Ralph Vargas other than as

part of the BDG sound recording included on FD II. 6. Ralph Vargas does not read or write music.

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7.

FD II is a collection of drum rhythms (known as drum "tracks") for hip hop

artists, remixers, and producers to sample and use in other recordings. It contains 17 drum tracks and was recorded in approximately four hours in the studio. 8. FD II was released in February 1994 by JBR Music, Inc. ("JBR"), a company that

is now defunct but was at the time owned by Plaintiff Bland-Ricky Roberts and operated out of his residence. 9. FD II was only released on vinyl LP. It was not released on CD, or any other

medium. 10. Plaintiffs manufactured no more than 4,000 copies of FD II. FD II was on sale

from February 1994 through April 1994. Plaintiffs did not sell any copies of FD II after April 1994. 11. Ralph Vargas cannot say how many copies of FD II were actually sold, but the

income from these sales was so sporadic he did not report it on his taxes. 12. Defendant Brian Transeau ("BT") is an accomplished professional musician,

composer and producer. He has released five full-length albums since 1996, and has written scores for popular movies such as Monster and The Fast And The Furious. 13. In 2001, BT released a double compact disk sound library entitled Breakz From

The Nu Skool ("Breakz"). It contains more than 400 tracks of "drum loops"--short drum patterns repeated several times. These drum loops are not meant to be listened to as music on their own; they are designed to be used as a background for other musical works. 14. 15. BT has not registered or claimed a copyright in the drum loops on Breakz. BT sold Breakz through Defendant East West Communications under a

distribution agreement. Upon sale, BT granted permission for purchasers of Breakz to use any of the tracks on Breakz in their own recordings. 16. One of the tracks on Breakz is entitled Aparthenonia.

17.

Apartehnonia is a two and one-quarter bar drum pattern that lasts approximately

nine seconds. It contains sounds of a high-hat, snare drum and bass drum. 18. Alanda Music Ltd, d/b/a/ Fluid Music ("Fluid") purchased a copy of Breakz and

used Aparthenonia as part of a song it produced for Publicis, Inc., an advertising agency, to use in a commercial for Celebrex, a drug manufactured and distributed by Pfizer, Inc. 19. To produce the song for the Celebrex commercial, Fluid recorded Aparthenonia

exactly as heard on Breakz and did not mix or manipulate Aparthenonia in any way. On top of Aparthenonia, Fluid layered a number of other percussion and instrumental tracks to create the song for the Celebrex commercial. 20. Plaintiffs contend that BT created Aparthenonia by making a digital copy of BDG

and digitally manipulating it, thus infringing Plaintiffs' copyrights in both the composition and recording of BDG. 21. BT contends he did not hear BDG or any part of FD II prior to composing

Aparthenonia, and did not copy it. Rather, he created Aparthenonia independently from scratch using specialized computer programs. 22. Dr. Smith, Plaintiffs' digital signal processing expert, has "no musical training,"

and thus "cannot render any opinion as to whether or not different musicians, with different instruments, playing at different points in time, can produce waveforms that look [as] similar" as BDG and Aparthenonia. (Smith Report at 2). 23. Spectrographic analysis is the best method for determining the similarities and

differences between audio sounds. 24. Spectrographic analysis can reveal the special characteristics of sounds with much

greater precision than the unaided ear.

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

JOINT PRETRIAL ORDER EXHIBIT B PLAINTIFFS' EXHIBIT LIST Plaintiffs expect to introduce the following exhibits in the trial of this matter. Defendants' objections, if any, are noted. No. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Description Defendants' Objection(s)

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

JOINT PRETRIAL ORDER EXHIBIT C DEFENDANTS' EXHIBIT LIST Defendants expect to introduce the following exhibits in the trial of this matter. Plaintiffs' objections, if any, are noted. No. A. B. C. D. Description Second Amended Complaint BT's Answer to Second Amended Complaint East West's Answer to Second Amended Complaint Exhibit B of Anthony Ricigliano's Declaration, Pro Tools Waveform Graphs of Celebrex commercial, Aparthenonia and BDG Exhibit C of Anthony Ricigliano's Declaration, Excerpts of Drum Training/Method Books Exhibit D of Anthony Ricigliano's Declaration, audio CD with 11 tracks and written Plaintiffs' Objection(s)

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transcriptions of the audio tracks Exhibit A of Anthony Ricigliano's Supplemental Declaration, "Drums of indefinite pitch," The New Harvard Dictionary of Music Exhibit B of Anthony Ricigliano's Supplemental Declaration, Turek, The Elements of Music: Concepts and Applications Volume 1, selected pages Fig. 1 of Dr. Richard Boulanger's Original Report Fig. 2 of Dr. Richard Boulanger's Original Report Fig. 3 of Dr. Richard Boulanger's Original Report Fig. 4 of Dr. Richard Boulanger's Original Report Fig. 5 of Dr. Richard Boulanger's Original Report Fig. 6 of Dr. Richard Boulanger's Original Report Fig. 7 of Dr. Richard Boulanger's Original Report Fig. 8 of Dr. Richard Boulanger's Original Report Fig. 9 of Dr. Richard Boulanger's Original Report Fig. 10 of Dr. Richard Boulanger's Original Report Fig. 11 of Dr. Richard Boulanger's Original Report Fig. 12 of Dr. Richard Boulanger's Original Report Fig. 13 of Dr. Richard Boulanger's Original Report Fig. 14 of Dr. Richard Boulanger's Original Report Fig. 15 of Dr. Richard Boulanger's Original Report Fig. 16 of Dr. Richard Boulanger's Original Report Fig. 17 of Dr. Richard Boulanger's Original Report

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Fig. 18 of Dr. Richard Boulanger's Original Report Fig. 19 of Dr. Richard Boulanger's Original Report Fig. 20 of Dr. Richard Boulanger's Original Report Fig. 21 of Dr. Richard Boulanger's Original Report Fig. 22 of Dr. Richard Boulanger's Original Report Fig. 23 of Dr. Richard Boulanger's Original Report Fig. 24 of Dr. Richard Boulanger's Original Report Fig. 25 of Dr. Richard Boulanger's Original Report Fig. 26 of Dr. Richard Boulanger's Original Report Fig. 27 of Dr. Richard Boulanger's Original Report Fig. 28 of Dr. Richard Boulanger's Original Report Fig. 29 of Dr. Richard Boulanger's Original Report Fig. 30 of Dr. Richard Boulanger's Original Report Fig. 31 of Dr. Richard Boulanger's Original Report Fig. 32 of Dr. Richard Boulanger's Original Report Fig. 33 of Dr. Richard Boulanger's Original Report Fig. 34 of Dr. Richard Boulanger's Original Report Fig. 35 of Dr. Richard Boulanger's Original Report Fig. 36 of Dr. Richard Boulanger's Original Report Ex. 2 of Dr. Richard Boulanger's Rebuttal Report Ex. 3 of Dr. Richard Boulanger's Rebuttal Report Ex. 4 of Dr. Richard Boulanger's Rebuttal Report Ex. 5 of Dr. Richard Boulanger's Rebuttal Report

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Ex. 6 of Dr. Richard Boulanger's Rebuttal Report Ex. 7 of Dr. Richard Boulanger's Rebuttal Report Ex. 8 of Dr. Richard Boulanger's Rebuttal Report Ex. 9 of Dr. Richard Boulanger's Rebuttal Report Ex. 10 of Dr. Richard Boulanger's Rebuttal Report Audio Sample CD of Dr. Richard Boulanger's Rebuttal Report, tracks 1 ­ 52 Breakz from the Nu Skool (BT 00026 & 00027, two audio CDs) Aparthenonia, master version as rendered from Logic (BT 00021, audio CD, one track) James Brown Funky Drummer Comparisons, audio CD, 4 tracks (BT 00028) (Defendant's Deposition Exhibit 4) Royalty Report for January 2003 - December 2004 re: BT (EW 007) Royalty Report for June 2002 December 2002 re: BT (EW 008) Royalty Report for October 2001 - June 2002 (EW 009) Agreement between Brian Transeau and East West Communications, dated 4/6/2001 (EW 001-006) Confidential Settlement Agreement and General Release (FL 001 - FL 014) Audio CD Edan, Sound of The Funky Drummer, with track list (BT 00022 - 00024) LL Cool J, Mama Said Knock You Out, from the album All World: Greatest Hits (BT 00025, audio CD Track 1)

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Pop Will Eat Itself, Not Now James, We're Busy, from the album This Is the Day...This Is the Hour...This Is This!! (BT 00025, audio CD Track 2) Sinéad O'Connor, I Am Stretched Out on Your Grave, from the album I Do Not Want What I Haven't Got (BT 00025, audio CD Track 3) New Order, Ruined in a Day, from the album Republic (US Release) (BT 00025, audio CD Track 4) Nine Inch Nails, Piggy (Nothing Can Stop Me Now), from the album Further Down the Spiral (BT 00025, audio CD Track 5) Fine Young Cannibals, I'm Not the Man I Used to Be, from the album The Raw & the Cooked (BT 00025, audio CD Track 6) MC Frontalot, Good Old Clyde, from the album Nerdcore Hiphop (demo) (BT 00025, audio CD Track 7) Dr. Dre, Let Me Ride, from the album The Chronic (BT 00025, audio CD Track 8) Public Enemy, Fight the Power, from the album 20th Century Masters - The Millennium Collection: The Best of Public Enemy (BT 00025, audio CD Track 9) Chubb Rock & Hitman Howie Tee, Talkin' Loud, Ain't Sayin'

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Jack, from the album And the Winner Is? (BT 00025, audio CD Track 10) VVV. The Pharcyde, Officer, from the album Bizarre Ride II (BT 00025, audio CD Track 11) Elton John, Little Jeanie from the album Greatest Hits, Vol. III (BT 00029, audio CD Track 1) Elton John, Sad Songs Say So Much, from the album Greatest Hits, Vol. III (BT 00029, audio CD Track 2) Billy Joel, Big Shot, from the album Greatest Hits, Vol. II (BT 00029, audio CD Track 3) Chicago, We Can Stop The Hurtin' from the album, Chicago 17 (BT 00029, audio CD Track 4) The Miracles, Love Machine, from the album Love Machine (BT 00029, audio CD Track 5) James Brown, Papa's Got A Brand New Bag, from the album 20 All Time Greatest Hits (BT 00029, audio CD Track 6) Plaintiffs' Responses and Objections to Fluid Music's Document Requests (7/24/2005) Plaintiffs' Responses and Objections to Fluid Music's Interrogatories (7/24/2005) Plaintiffs' Responses and Objections to Fluid Music's Requests to Admit (7/24/2005) Plaintiffs' Responses and Objections to Document Requests (Nov. 9, 2005) Plaintiffs' Supplemental Responses and Objections to Document Requests (April 11, 2006)

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Plaintiffs' Second Supplemental Response and Objections to Document Requests (7/26/2006) Plaintiffs' Responses and Objections to Interrogatories (11/9/2005) Plaintiffs' Supplemental Responses and Objections to Interrogatories (7/26/2006) (with Roberts's verification dated 7/28/2006 and Vargas's verification dated 7/28/2006) 7/26/2006 Letter from Paul Chin to Julie Ahrens re discovery 8/28/2006 Letter from Julie Ahrens to Paul Chin re discovery