Vargas et al v. Pfizer Inc. et al

Filing 97

PROPOSED PRETRIAL STATEMENT Plaintiffs' Joint Pre-Trial Order. Document filed by Ralph Vargas. (Attachments: # 1 Supplement Plaintiffs' Proposed Joint Pre-Trial Order# 2 Errata A to Plaintiffs' Joint Pre-Trial Order# 3 Exhibit B to Plaintiffs' Joint Pre-Trial Order# 4 Exhibit C to Plaintiffs' Joint Pre-Trial Order# 5 Affidavit Declaration of Paul Chin)(Chin, Paul)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

RALPH VARGAS and BLAND -

multiple bounce strokes and ghost notes. This recording of BDG was included on the album Funky Drummer Vol. II ("FD II"). 7. The composition BDG was not recorded anywhere by Ralph Vargas other than as

part of the BDG sound recording included on FD II. 8. 9. Ralph Vargas does not read or write music. FD II is a collection of drum compositions for hip hop artists, remixers,

production companies, production houses, disc jockeys and producers in other recordings. It contains 17 drum compositions and was recorded in approximately four hours in the studio. Plaintiff Roberts is the copyright owner in and to the sound recording of FD II and BDG. 10. FD II was released in February 1994 by JBR Music, Inc. ("JBR"), a record

company that is no longer in business but was at the time owned by Plaintiff Bland-Ricky Roberts. JBR, prior to releasing FD II, released sound recording albums of numerous other recording artist that were signed to JBR. 11. JBR had distribution deals with various national and international record

distributors including, but not limited to INDI Distribution, Tiger Distribution, California Record Distributors (collectively the "Distributors"). The Distributors distributed records manufactured by JBR, including FD II, to retail record stores across the country and overseas. 12. FD II was only released on vinyl LP. It was not released on CD, or any other

medium. 13. Plaintiffs manufactured no more than 4000 copies of FD II. FD II was on sale

from approximately February 1994 through April 1994. Plaintiffs did not sell any copies of FD II after April 1994. 14. Defendant Brian Transeau ("Defendant BT") is a 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.

15.

In August of 2000, Defendant BT created Aparthenonia. Aparthenonia is one bar

of drumming music which is then repeated numerous times. In 2001, Defendant BT and Defendant East West Communications, Inc. ("Defendant EWC") released a double sample compact disk sound library entitled Breakz From The Nu Skool ("Breakz"). It contains more than 400 tracks of "drum loops"-- drums pattern 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. 16. Defendant BT has not registered or claimed copyright in the drum loops on

Breakz. 17. Defendant BT sold Breakz through Defendant EWC under a distribution

agreement. Upon sale, Defendant BT granted end user license to purchasers of Breakz to use any of the tracks on Breakz in their own recordings. 18. 19. One of the tracks on Breakz is entitled Aparthenonia. Aparthenonia is one bar of drum music which is then repeated numerous times.

The musical elements contained in Aparthenonia include high-hat, snare drum, bass drum, multiple bounce strokes, and "ghost notes." 20. 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. 21. Plaintiffs contend that Defendant BT sampled or copied Bust Dat Groove and

then digitally edited/manipulated the sequence of musical notes contained therein in order to create Aparthenonia thus infringing Plaintiffs'copyrights in both the composition and sound recording of BDG. 22. 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 Defendant BT contends that Aparthenonia independently from using specialized computer programs.

23.

Plaintiffs contend that the musical elements embodied in Aparthenonia are almost

identical to the musical elements contained in BDG except that these elements have been re-arranged in Aparthenonia. 24. Plaintiffs contend that the rhythm, pitch and feel of Aparthenonia and BDG are

almost identical. 25. Plaintiffs contend that BDG can be sampled or copied, and then digitally edited or

manipulated, to create a duplicate of Aparthenonia that is approximately 98% identical. 26. Plaintiffs contend that the frequency spectra of the drum sounds of the first 2.3

seconds of the first bar of drum sounds in both Aparthenonia and BDG are virtually indistinguishable from each other.