The Football Association Premier League Limited et al v. Youtube, Inc. et al

Filing 276

DECLARATION of Elizabeth Anne Figueira, Esq. in Opposition re: 167 MOTION for Summary Judgment.. Document filed by The Music Force LLC, Cal IV Entertainment, LLC, Cherry Lane Music Publishing Company, Inc., The Football Association Premier League Limited, Robert Tur, National Music Publishers' Association, The Rodgers & Hammerstein Organization, Edward B. Marks Music Company, Freddy Bienstock Music Company, Alley Music Corporation, X-Ray Dog Music, Inc., Federation Francaise De Tennis, The Scottish Premier League Limited, The Music Force Media Group LLC, Sin-Drome Records, Ltd., Murbo Music Publishing, Inc., Stage Three Music (US), Inc., Bourne Co.. (Attachments: # 1 Exhibit 189, # 2 Exhibit 190, # 3 Exhibit 191, # 4 Exhibit 192, # 5 Exhibit 193, # 6 Exhibit 194, # 7 Exhibit 195, # 8 Exhibit 196, # 9 Exhibit 197, # 10 Exhibit 198, # 11 Exhibit 199, # 12 Exhibit 200, # 13 Exhibit 201, # 14 Exhibit 202, # 15 Exhibit 203, # 16 Exhibit 204, # 17 Exhibit 205, # 18 Exhibit 206, # 19 Exhibit 207, # 20 Exhibit 208, # 21 Exhibit 209, # 22 Exhibit 210, # 23 Exhibit 211, # 24 Exhibit 212, # 25 Exhibit 213, # 26 Exhibit 214, # 27 Exhibit 215, # 28 Exhibit 216, # 29 Exhibit 217, # 30 Exhibit 218, # 31 Exhibit 219, # 32 Exhibit 220, # 33 Exhibit 221, # 34 Exhibit 222, # 35 Exhibit 223, # 36 Exhibit 224 Part 1, # 37 Exhibit 224 Part 2, # 38 Exhibit 225, # 39 Exhibit 226, # 40 Exhibit 227 Part 1, # 41 Exhibit 227 Part 2, # 42 Exhibit 227 Part 3, # 43 Exhibit 227 Part 4, # 44 Exhibit 228, # 45 Exhibit 229, # 46 Exhibit 230, # 47 Exhibit 231, # 48 Exhibit 232, # 49 Exhibit 233, # 50 Exhibit 234, # 51 Exhibit 235, # 52 Exhibit 236, # 53 Exhibit 237, # 54 Exhibit 238, # 55 Exhibit 239, # 56 Exhibit 240, # 57 Exhibit 241, # 58 Exhibit 242, # 59 Exhibit 243, # 60 Exhibit 244, # 61 Exhibit 245, # 62 Exhibit 246, # 63 Exhibit 247, # 64 Exhibit 248, # 65 Exhibit 249, # 66 Exhibit 250, # 67 Exhibit 251, # 68 Exhibit 252, # 69 Exhibit 253, # 70 Exhibit 254, # 71 Exhibit 255, # 72 Exhibit 256, # 73 Exhibit 257, # 74 Exhibit 258, # 75 Exhibit 259, # 76 Exhibit 260, # 77 Exhibit 261, # 78 Exhibit 262, # 79 Exhibit 263, # 80 Exhibit 264, # 81 Exhibit 265, # 82 Exhibit 266, # 83 Exhibit 267, # 84 Exhibit 268, # 85 Exhibit 269, # 86 Exhibit 270, # 87 Exhibit 271, # 88 Exhibit 272 Part 1, # 89 Exhibit 272-2, # 90 Exhibit 272 Part 3, # 91 Exhibit 272 Part 4, # 92 Exhibit 272 Part 5, # 93 Exhibit 272 Part 6, # 94 Exhibit 272 Part 7, # 95 Exhibit 272 Part 8, # 96 Exhibit 272 Part 9, # 97 Exhibit 272 Part 10, # 98 Exhibit 272 Part 11, # 99 Exhibit 272 Part 12, # 100 Exhibit 272 Part 13, # 101 Exhibit 272 Part 14, # 102 Exhibit 272 Part 15, # 103 Exhibit 272 Part 16, # 104 Exhibit 272 Part 17, # 105 Exhibit 272 Part 18, # 106 Exhibit 272 Part 19, # 107 Exhibit 273, # 108 Exhibit 274, # 109 Exhibit 275, # 110 Exhibit 276, # 111 Exhibit 277, # 112 Exhibit 278, # 113 Exhibit 279, # 114 Exhibit 280, # 115 Exhibit 281, # 116 Exhibit 282, # 117 Exhibit 283, # 118 Exhibit 284, # 119 Exhibit 285, # 120 Exhibit 286, # 121 Exhibit 287, # 122 Exhibit 288, # 123 Exhibit 289, # 124 Exhibit 290, # 125 Exhibit 291, # 126 Exhibit 292, # 127 Exhibit 293, # 128 Exhibit 294, # 129 Exhibit 295, # 130 Exhibit 296, # 131 Exhibit 297, # 132 Exhibit 298, # 133 Exhibit 299, # 134 Exhibit 300, # 135 Exhibit 301, # 136 Exhibit 302, # 137 Exhibit 303, # 138 Exhibit 304, # 139 Exhibit 305, # 140 Exhibit 306, # 141 Exhibit 307, # 142 Exhibit 308, # 143 Exhibit 309, # 144 Exhibit 310, # 145 Exhibit 311, # 146 Exhibit 312, # 147 Exhibit 313, # 148 Exhibit 314, # 149 Exhibit 315, # 150 Exhibit 316, # 151 Exhibit 317, # 152 Exhibit 318, # 153 Exhibit 319, # 154 Exhibit 320, # 155 Exhibit 321, # 156 Exhibit 322, # 157 Exhibit 323, # 158 Exhibit 324, # 159 Exhibit 325, # 160 Exhibit 326, # 161 Exhibit 327, # 162 Exhibit 328, # 163 Exhibit 329, # 164 Exhibit 330, # 165 Exhibit 331, # 166 Exhibit 332, # 167 Exhibit 333 Part 1, # 168 Exhibit 333 Part 2, # 169 Exhibit 334, # 170 Exhibit 335, # 171 Exhibit 336, # 172 Exhibit 337, # 173 Exhibit 338)(Figueira, Elizabeth)

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THIS 1023 Music made as of the 6th day of December 2006 between X-Ray Dog AGREEMENT CA 91505 USA X-Ray Dog of the Suite 103 Burbank Hollywuocl Way Coah and Images S.A dc C.V Lirios 386 Col Torren Jardln 27200 Torren is Music Mexico Inc first part and Publisher of the second part WHEREAS X-Ray music Dog has rights in and to certain musical compositions and sound wishes recordings to appoint comprising the Publisher library the Library as more fully defined in clause for the Library in Mexico below and as sole subpublisher the Territory NOW THEREFORE hereinafter contained in consideration of the premises and of the respective covenants and conditions IT IS HEREBY AGREED as follows APPOINTMENT X-Ray Dog appoints the Publisher as sole subpublisher for the Library in the Territory TERM The term of this agreement and is for period which is hereby the 30th confirmed of June to have commenced on the 1st Day of January 2007 which shall continue until 2010 the Term DEFINITION The Library released part shall OF THE LIBRARY be defined as the copyright musical compositions and the recordings or hereafter in the Library the Term as by X-Ray Dog in the United States of America prior hereto during of the Library to the extent X-Ray Dog has rights therein part for the Territory as aforesaid The Compositions shall mean shall the musical compositions forming forming of the Library and the Recordings mean the recordings part of the Library as aforesaid DELIVERY OF ITEMS 4.1 FROM THE of all LIBRARY X-Ray On the signing free of of this Agreement of Dog shall supply to the Publisher as the same of like one have and compact not already disc copy been charge the releases in the Library hereof or under insofar supplied either in anticipation prior agreement disc copy free kind all X-Ray Dog shall also supply Library hereafter to the Publisher during the one compact of charge of new releases in the Term and X-Ray charge 4.2 shall The supply at Publisher such may order further compact discs as required as Publisher and its by the Publisher its Dog the compact discs at the same price discs from and sister companies X-Ray Dog that time for compact Publishers In sister all companies costs own libraries under existing agreement charged catalogues to between and the said companies the Publisher materials addition of packing and freight will be of all the Publisher and shall also be responsible for insurance discs tapes promotional sent by X-Ray Dog this 4.3 during Notwithstanding the the provisions contained under Paragraph hereof of X-Ray in Dog may Term and after prior consultation in digitized format discs with Publisher andlor make copies items the Library to or rather available than to Publisher via the Internet by other means in addition by delivery of compact RIGHTS 5.1 GRANTED to the provisions to grant of clause Subject below the Publisher licenses shall have authorizing the right to the dubbing grant only and to in authorize others non exclusive worldwide the XrayOogMusic Mexicc Page 2006-12.07 Figueir Highly Confidential Deci Thb 208 XD00057211 Territory films of Compositions tapes as and/or well shall in the as Recordings the on and to sound tracks of motion picture for films and television It is and video that the dubbing the mechanical the reproduction radio transcriptions for less agreed the best Publisher rates not license Territory use of Compositions and/or Recordings than prevailing 5.2 Subject to for the the the provisions purpose as of clause below the in Publisher the Territory or shall have the right to reproduce the Recordings reproduce of exploiting the Library background music hereunder including nght to Recordings on commercial advertising tapes or recordings 5.3 The Publisher on shall have the right to license the subject use of one to or more individual restrictions the Compositions Bearing shall in and/or Recordings provisions third parties third party websites or servers in particular the following 6.1 available to mind the of clause to below and in sub-clauses Recordings form as 6.4 publisher Internet not permit other form forming an make Compositions and/or via the or into any and of electronic communication part downloadable product except where synchronized game video inseparable of some other such listen the to downloadable and/or and/or or like in audiovisual the product of on-line as or ii permit Internet users to of Compositions Recordings except context part such some product music on background use of which Composition Recording form an inseparable homepage entitled to 5.4 The Publisher without the shall prior not be written make any of the Compositions and/or Recordings available on-line approval of X-Ray Dog in each case 5.5 The Publisher shall promptly notitSr the X-Ray Dog in of any claim notified to the Publisher and any suit the the or proceedings individual Publisher and the after commenced against and/or at Publisher respect of the Library or any one and or more of Compositions during the Term the prior the Recordings of the X-Ray Dog hereby as authorizes hereafter empowers to the expense Publisher subject to provided all defend and to obtaining written consent and to of X-Ray be party to Dog any enforce or the and protect rights in Library throughout the Territory suits to proceedings full in the name of X-Ray rights Dog where and interests to Publisher that deems no suits it advisable and to proceed be extent of X-Ray Dogs except the or proceedings shall offers settled or otherwise shall disposed of and without prejudice without might generality of the consent effect foregoing of no of settlement or not that ils be made accepted or other or rejected disposition to the prior have written X-Ray Dog In shall or whether the such settlement continuing or other on X-Ray Dog event at X-Ray Dog refuses consent for such settlement the disposition X-Ray in Dog suits assume proceedings expense responsibility representing to its Publisher and X-Ray the Dog in such and may pursue such representation all satisfaction Provided as provided Publisher this has duly sub-clause notified X-Ray any Dog to and obtained consents from Ray or Dog above 5.5 shall from be recovery obtained costs by settlement judgment and expenses of the incurred balance In otherwise legal by the Publisher Publisher shall entitled deduct including the fees and the Publisher pay to X-Ray for or Dog 50% such suit fifty per cent or proceedings reasonable event of or X-Ray in Dog event assuming that the the responsibility refuses as time shall hereinbefore to provided proceedings the Publisher to fails in within writing to take legal to having and been requested including do legal so by X-Ray fees Dog be X-Ray Dog retain be obliged pay all costs expenses but shall entitled the entire amount of any recovery 5.6 Except in the case in of individual Compositions shall in the respect of which right X-Ray to Dog the notifies the in Publisher clause hundred permitled otherwise writing the Publisher fifty per have such in exclusive to subject obligation below per to pay 50% cent from of income the in X-Ray Dog to collect far as 100% one the same directly are cent of mechanical other income income sales specified Licensed sub-clause Territory 7.2 so hereunder and not below payable by XrayoogMusic Mexico Page 2006-12-07 Highly Confidential XD00057212 XD0005721 licenses or distributed by local societies in Ihe Licensed Territory arising from to exploitation of the Library in the but not Licensed of Territory other than those types exploitation of type reserved envisaged in X-Ray Dog are including For the by way of with limitation it is of exploitation clause below Users avoidance provided doubt hereby acknowledged by both parties that prospective generally Recordings free-of-charge RESERVATIONS FOR NON LIBRARY EXPLOITATION 6.1 the Any request an for permission to manufacturc and/or release directly or indirectly shall for retail sale to public audio-only for recording recordings commercial of any of the recording which and/or to term include shall so-called promo-videos X-Ray and/or such Compositions need Recordings the be directed to Dog it being understood of the that X-Ray Dog may to obtain consent release of the the writers composers and on relevant composition documentation in manufacture and that and/or conunercial recording performers release shall organize the relevant the contractual Library recordings recording respect of is such to be payments may need use Where any manufacture made to and/or Publisher of obtain commercial as of aforesaid subsequenty or the fUrther licensed licensing by X-Ray in Dog of as the no rights as in respect exploitation that shall of respect any commercial aforesaid is recording procured Publishers the made by the aforcsaid except where agree and/or commercial the recording made Publisher if X-Ray any to Dog with other is Publisher on in case-by-case respect thereof or restrict basis shall the what the entitlement of royalties remuneration intended music to be For avoidance doubt the foregoing of such provision things the as not prevent Publisher tapes exploiting the or recordings and/ar Library by way background object is on commercial of the or advertising musical or other products itself where primary not exploitation composition recording 6.2 Any request for permission be directed to to make X-Ray an arrangement it being of will of or adaptation that of or change to any to of the Compositions the shall Dog understood the X-Ray Dog may need to the obtain of the the in the consent of the writers and/or composers relevant be composition making arrangement original adaptation or change and and consent always any needed in where anybody other than writersfcomposers front the X- Ray Dog obtains as interest the copyright or or other rights or income musical for compositions the arrangement arranged adapted changed and organize contractual documentation 6.3 Any request for permission Recordings understood relevant in to use part of or an extract from sample shall any be of the to Compositions and/or it being any new musical composition need to and/or obtain recording the part directed X-Ray and/or the Dog that X-Ray Dog may to will consent of the writers organize than the in composers of the Composition consent such use of the be relevant or extract and other contractual documentation and and always needed in where the anybody original songwriter/composer X-Ray Dog obtains as any interest copyright or other rights to or to income from the musical on the compositions Recordings in adapted and that payments may need be made performers relevant respect of such use 6.4 The parties hereto acknowledge musical will that new arrangement and/or of adaptation containing of or change to Composition Composition relevant use of and and/or new composition normally recording sample separate or change from from the Recording constitute new any copyright work original Composition as and/or is Recording Whcrc arrangcmcnt adaptation or any sample recording is aforesaid subsequently licensed the by X- Ray new Dog if the new musical or changes granted and/or composition and/or the and/or sample therein comprising as part and/or of the containing Library the arrangement shall adaptation the exploited Publisher said obtain rights hereunder recording therein is in in respect of any Library otherwise than as part exploitation of the Library If the the new musical composition exploited Publisher shall obtain no rights hereunder XrayDogMusic Mexico Page 2006-12.07 Highly Confidential XD00057213 XD0005721 respect of any non-Library exploitation 6.5 It is acknowledged can involve by both editing parties hereto of that non library exploitation of and the Compositions recordings exploited be and it and other being Recordings alterations and cutting such in musical compositions library as consistent that the with prior the the normal consent manner of which works are understood written original in or to the X- Ray Dog wiLl aforesaid always needed interest where in the anybody copyright preceding Recordings other or than writers/composers from the and X-Ray Dog as obtains any other rights income 6.4 is musical to restrict compositions such from changed of the and nothing Compositions in the sub-clauses 6.1 intended share exploitation and nor to restrict Publishers of income such exploitation 6.6 Insofar as any unauthorized from in arrangement Compositions of this of or adaptation and/or Library of or change is to commercial Publisher of such release shall of have or use of the right sample set any of the Recordings discovered respect out or sub-clause or Agreement release in unauthorized arrangement exploitation to royalties adaptation it change commercial that the or to sampling the and anyunauthorized shall thereof and/or being other understood remuneration extent if any which Publisher be entitled relevant after arising from non-Library composition or exploitation or sample settlement set of the .commercial not taken faith recording into arrangement in adaptation court into or changed order or occurring be or in account any resulting basis judgment the shall in discussed good clauses on case-by-case taking account provisions out the preceding sub- of this clause ROYALTIES 7.1 Except all as fees otherwise accruing provided hereinbelow the Publisher shall pay in to X-Ray Dog 50% with the fifty per of cent of this from exploilation of works from the Library accordance terms Agreement 7.2 The performing right rights in the Compositions any writer is subject to the rights now or hereafter is of the performing theft called society of in which and/or it composer that the of any Composition shall member the entire and sothe said shall sothe affiliated societies the Territory 6112 and is agreed of Publisher collect fees publishers in share being and the six twelfth shall performing and broadcasting fifty earned by Library the Territory Publisher and remit to fees X-Ray received Dog 50% by the the per cent or the publishers share of local performing has not 6/12 the broadcasting Publisher local The Publisher to where called the society share already been so instructed of performing society If instruct society fees to the pay the writers in the being to six twelfth performing in and for broadcasting earned by Library Territory rights payment licenses all on the the writers and composers directly rather there of the musical than through compositions performing rights society the Library society issue Publisher receives public public license performances fee or in the Publisher to third rights and such of event shall parties is no performing to license able to public performance in license have and such the shall right directly to collect the all performance therefrom in rights the Compositions percent use best efforts collected sums be which case twenty-five Fifty 25% of the be shall of all sums by Publisher 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and not remit to X-Ray fees Dog one percent Publisher 50% The society publishers shall share the of performing society broadcasting already been of received by Publisher to where local has so instructed performing society instruct the local pay from and the the so-called Foreign writers Licenses share in the being 6/12 Territory six to its twelfths performing and for broadcasting fees the earned rights payment to Writers Composers share of all 7.4 The Publisher as shall remit fifty percent 50% Publisher of said of the Publishers or so the called sums received by the as Publisher direct bonus payments of all other unallocated of the if funds Black to Box payments X-Ray attributable proportion income from Library Dog and one hundred percent 100% of the Writers share any amounts COLLECTION The and the Publisher shall be entitled during the Term of the and during the one year thereafter in to collect all fees monies Term arising from such to exploitation Compositions and/or distributed Recordings or the Territory to the during and where monies the have not already been always to paid through and X-Ray Dog from exploitation prior Term subject the provisions of clauses ACCOUNTING 9.1 FOR ROYALTIES shall Royalty half statements yearly period fees to be rendered 30th by the Publisher 31st to the X-Ray in Dog be within 90 ninety all days of each ending June and December statements monies due each year showing mechanical for royalties license and be other monies to the earned Such for all shall accompanied by cheques the amount shown in due X-Ray Library Dog at and copies of all statements professionally the received qualified by the Publisher respect of the shall the The X-Ray the Dog or three an independent cost to inspect accountant on its behalf during have the right for X-Ray of 14 Dogs books and records shall of the Publisher be subject to the Term and period years thereafter Such and inspections not take to all X-Ray in Dog giving the Publisher fourteen shall days notice to shall place more than statements accountings once any calendar year The X-Ray rendered and Dog the be deemed have and consented such given the royalty and and shall other be arcountings by Publisher hereunder statements deemed final binding unless the after the date X-Ray Dog shall have the Publisher written objection thereto within three years of receipt of the same by X-Ray Dog 9.2 All payments such to made by the Publisher as the that to the X-Ray Dog the hereunder shall to be in the direct after currency in of the and and the 31$t rate Ray Dog or rate as that other currency be utilized shall X-Ray in are Dog may from time on 90th time writing June exchange be effect ninetieth after day such 3O the the December shall costs shall appropriate of the actual or if payments date the made by the Publisher is dale to exchange be of be of payment currencies whichever the most advantageous to the X-Ray the Dog All converting borne from utilized by the Publisher currency of X-Ray Dog by the Publisher 10 10 shall in MISCELLANEOUS On the expily to the or termination of this Agreement shall or any extension to thereof all rights to in the Library revert X-Ray and until Dog such but the Publisher earned the continue the render statements the X-Ray Dog make to respect of royalties other monies time as under provisions ceased to all of this Agreement collect and shall remittance clause therefrom inventory terms therefore hereof and Publisher the has such due to the monies to pursuant accounted Forthwith of records through to X-Ray the Dog royalties the X-Ray Dog full hereunder of all upon termination and Publisher supplied the shall send X-Ray Dog to stock all tapes derivatives catalogues thereof in by the X-Ray of the Dog pursuant the hereof and copies and possession Publisher the stock XrsyDogMusic Mexico Page 2006-12-07 Highly Confidential XD00057215 XD0005721 together Within with complete days should list of all persons of such supplied inventory delivery in with the the Library or part thereof instruct by the Publisher the 60 the sixty stock of be receipt X-Ray be at Dog the shall Publisher cost to whom delivered of the the which shall new publishers and risk of of the to Notwithstanding charge charge the generality free in foregoing shall respect of deliver for the stock free acquired stock to by the the Publisher publisher free free the and stock to then Publisher has new paid respect of stock the which been paid by cost the as Publisher the stock stock then paid stock the gMll be sold new publisher that at the the same was originally paid by the Publisher X-Ray Dog PROVIDED shall to ALWAYS the new with publisher requires such 11 The Publisher licensed the not have right to part this or assign to any without the other person prior or party consent any of the benefits him under the terms of Agreement written of the Ray Dog as Should case may require defliult in in 12 the Publisher provided be or rendering complying such any statement with default of account or or in making herein after any payment required the as the hereinbefore Publisher has the sent right to fully any terms for conditions thirty of performed of such and should by continue or telex to 30 days the X-Ray shall Dog have notice to default and cancel registered mail as the Publisher of the said X-Ray thirty of any Dog days law be be terminate this Agreement the benefit of expiration of creditors 30 or should relating petitioned entitled to for to the Publisher bankruptcy into make any assignment for the in or take the benefit or liquidation save for purpose each the to of reconstruction every such shall or should the the Publisher bankruptcy and or liquidation cancel fees this then and event X-Ray to the Dog X-Ray shall terminate Agreement for and up Publisher account Dog forthwith any outstanding not accounted the time of such cancellation 13 The X-Ray Dog Dog to the hereby represents and warrants and undertakes that the rights X-Ray granted the controls for period of not in the less than the duration of of this all Agreement and each of the Publisher hereunder to enter Library free and clear claims encumbrances and that X-Ray Dog is free into this Agreement ii part during of the the period Library of this Agreement the X-Ray to Dog will not grant any rights in the Library or any in respect of the Territory or act in or enter Publisher into any agreement any way other than the Publisher person firm or company which would derogate from the rights to the granted any hereunder iii the rights Compositions party arc original and that none of them infringes any other copyright work or other of any third 14 all The loss X-Ray Dog hereby agrees to indemni by and hold of harmless and the Publisher of of rights and or from any and other claim This of liability and the expense incurred reason infringement representations of the inconsistent with shall X-Ray Dogs guarantees should has been warranties exploitation and undertakings after notice indemnity infringement not be adversly affected that Library continue of rights or other claim received by the Publisher 15 All rights to in the Library not expressly any granted by the Owner to Publisher herein are hereby reserved the X-Ray Dog without limitation whatsoever 16 this The X-Ray Agreement Dog with hereby the warrants and declares to the Publisher that it bas the full right to enter into Publisher XrayDogMuaic Mexico PageS 20D6-1207 Highly Confidential XD00057216 XD0005721 17 This Agreement this shall be construed shall and binding enforced in accordance hereto hereto thc with the law in the State of California and licensees Agreement be upon shall the parties and their in respective writing at successors all and permitted This assigns constitutes enter into No amendment the entire be made except parties by parties hereto and the Agreement hereto agreement that basis between without hereto the date hereof parties it solely on reliance on any other representations whatsoever IN WITNESS whereof the parties hereto have set their hands the thy and year first above written Signed by and for by and on behalf of X-Ray Dog Music Inc duly authorized /1 1/I/A -V 1-i Co 12-- 277...p Signed by Music and Images S.A de CV duly authorized XrayDogMusic Mexico Page 2006-12-07 Highly Confidential XD00057217 XD0005721

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