Bourne Co. v. Twentieth Century Fox Film Corporation et al

Filing 30

DECLARATION of Jeremiah Horan in Support re: 28 MOTION for Summary Judgment.. Document filed by Bourne Co.. (Fakler, Paul)

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Bourne Co. v. Twentieth Century Fox Film Corporation et al Doc. 30 Ross Charap (RG2584) Paul M Fakler (PF-0249) Julie Stark OS-8925) Amnda J. Schaffer (AS-2004) MOSES & SINGER LLP 405 Lexington Avenue New York, New York 10174-1299 TeL.: 212-554-7800 Fax: 212-554-7700 pfaklei: A tt for Plaintff Bou Ca UNTED STATES DISTRCl COURT SOUIRNDISTRCl OF NEW YORK x BOUR CO., Plaintiff, 07 Civ. 8580 (DAB) - against- TWNTETH śNTY FOX FILM CORPORATION, FOX BROADCATING FOX śNTY COMPAN, TWNTETH DECLARTION OF JEREMIAH HORA TELEVISION, INC, TWNTETH śNTY FOX HOME ENTRTAINMNT, INC, FUZZY DOOR PRODUCfONS, INC, TI CATOON MACFARAN, WALTER MUHY, NETWORK, INC, SETH Defendants. X 1. I handle licensing and copyrghts at Bourne Co. ("Bourne") and, as such, I am fully famiar with the facts set forth in this declaration and the documents attached hereto. I submit this declaration in support of Boure's Motion for Summry Judgment on Liabilty and in Opposition to Defendants' Motion for Summry Judgment on Fair Use. Discovery of the Infringement 2. Typically, when we reject a license request, we monitor the requesting part or program to be sure that our song is not used without our permssion. In the case of "I Need a Jew" 692878v2 009207.0101 ("Jew") from the episode of the animted television series "Famiy Guy" entitled "When You Wish Upon a Weinstein" (the "Episode"), the Episode did not air until several years after we rejected the license request. Consequently, we would not have been monitorig Famiy Guy for the rejected use at the time the Episode was finally released. 3. In March of 2007, Jonathan Stone, a Boume employee alerted me and the President of Bourne, Marco Berrocal, to a You Tube video of the performnce of "Jew". Upon hearig "Jew" we knew instantly the song was a copy of "Star" with anti-Semitic lyrcs that were lily to offend a broad section of the general public. 4. The company imediately began researchig whether it had issued a license for "Jew." We checked our computer files and our paper back-up files for a license for this use. 5. We also directed a music editor from one of our subsidiaries, Wilam Ryden, to perform a musicological comparion of "Star" and "Jew." 6. After conducting these inquies we concluded that "Jew" was indeed an unlicensed of "Star." copy 7. We then researched the extent to which the Episode and "Jew" had been broadcast, distributed or otherwse exploited. We learned that in addition to being broadcast on the Cartoon Network several times and once on Fox, the Episode had been released on DVD and was enjoyig robust sales. 8. We then contacted our attorney, Thoma Levy, to discuss our next steps. 9. On June 21, 2007, Mr. Levy sent a letter to Fox on our behalf in which he notified Fox that "Jew" is an unlicensed copy of "Star," and demaded that Fox cease and desist all exploitation of the Episode and "Jew." Mr. Levy also demanded an accounting for all exploitation 692878v2 009207.0101 2 of the Episode and "Jew," demanded acknowledgment of receipt of our letter, and inormed Fox that Bourne intended to seek legal redress if our demads were not met. 10. Fox initially began settlement discussions, but repeatedly delayed providing any substantive responses or proposals. After a series of such delays, and at a point where we were no longer getting any responses from Fox, Bourne filed its Complaint against the Defendants on October 3,2007. The Reputation and Value of Star 11. "Star" is one of the most famous songs in the world. It is considered a standard and is licensed worldwide for television, fil, commercials, musical recordings, live performnces and other uses. It is one of the "crown jewels" of the Boume music publishing catalogue and a valuable source of licensing income for Bourne. Star has been recorded by well over 100 different recording artists. 12. Synchronition licenses (or "synch" licenses) are licenses for the use of songs in audiovisual works such as fil, television shows, commercial. Synch licenses frequentlyalso include the riht to ditribute the audioviua work in various audioviual formts includig DVDs. The fees generated from synch licensing make up a substatial part of the income generated by a clasic song associated with a particular such as "Star," particularly when the song becomes famous and widely theme, such as "Star's" association with wholesomeness and sweetness. 13. Bourne also frequently licenses" Star" for use in comedy programs, including when the song is used in sketches for comedic effect. Consequently,there is an establihed market for comedic synchroniation uses of "Star." Attached hereto as Exhibit "A" is a true and correct copy of a samplig of synchronition licenses we have issued for our songs for use in television comedies or for other comedic purposes. 692878v2 009207.0101 3 14. For example, we licensed "Star" for use in an episode of "Prietime Glick" where Chevy Chase impersonated Jimy Cricket singing" Star." See Exh. A 15. We also licensed "Star" to NBC for use in various episodes of Saturday Night Live over the course of several years for use in comedy sketches. See Exh. A 16. We have also licensed "Star" for use in several television sitcoms, including, "The Super Dave Osborne Show," "Perfect Strangers" and "WKRP in CIcIrati." See Exh. A 17. We also license many of our other songs for comedic uses. Examples of comedic motion pictures and videos that have featured our songs are: "Click," "Anger Management," "Gremls," "Greedy," "Shrek the Third," "Son of the Mask," "Heartbreak Kid," "Alvin and the Chipmun" and a music video of "Crazy Frog." Examples of television sitcoms that have licensed our other songs include: "Da Ali G Show," "The Office (BBC Version)," "Archie Bunr's Place," "Al In the Famiy," "Maude," "Famiy Ties," "The Cosby Show," "Newhart," "Laverne and Shirley," "M'°A'°'S'°'H," "Different Strokes," "The Jeffersons," "Who's The Boss," "Mork & Midy," "Ful House," "Dharm & Greg," "Rhoda," "Happy Days," "The Odd Couple," "Cheers" and "Marred With Children." See Exh. A. 18. The comedic use of a song in synchronization with an audiovisual work can and often does include contrasting the lyrcs and theme of the song with the visuals playig on screen for a humorous effect. 19. For example, we licensed "Some Day My Price Wil Come" and "Whistle While You Work" to the Carol Burnett Show for use in a comedy sketch about Snow White in which the audience revisits the fair tale pricess at the castle fifteen years after marrg her fair tale price. She and her iconic regalia are bedraggled and worse for wear and she is scrubbing floors while singing "Some Day My Price Wil Come" contrasting the drudgery of her lie with the theme of 692878v2 009207.0101 4 hopefulness in the song. Durig the sketch Bashful the dwarf comes to visit and makes amorous advances towards her after whitlig the tUe of "Whistle While You Work." The price is portrayed throughout as effemiate and wholly disinterested in Snow White and in the end of the sketch when he chooses to die rather than kiss her, she flees her lie of drudgery with BashfuL. See Exh.A 20. We licensed "Unforgettable" -- another of our "crown jewels" -- for use on "America's Funiest Home Videos" where the song was played durig a visual montage of funy home videos featurig children, pets and adults in memorable but extremely silly situations relating to the lyrcs of the song. See Exh. A 21. We also licensed "Unforgettable" for use in an amusing Heineken beer commerciaL. For that use, our song plays in the background while a man and a woman are drig Heineken beer. She takes a sip from his glass, leaving him with less than her, and when she turns her head, he humorously 11 corrects 11 the sitution by switching their glasses. See Exh. A 22. On another occasion, we licensed "Unforgettable" for a scene in an episode of the sitcom "Wil & Grace" in which two of the pricipal characters, Karen and Jack, reflect on their lives together and suddenly break into an exaggerated, Las Vegas lounge-stye rendition of the song. See Exh.A 23. We licensed "Black Magic Woman," for use in a number of episodes of VHl's "I Love the 70's," including one in which the song was played durg a segment featurg the horror movie "Carre," and another in which it was played durg a segment about the breakup of the Beatles -- a clear joke on the "evil" inluence of Y oko Ono on the band. See Exh. A 24. There is also an established market for derivative works licenses to change the lyrcs to popular songs and we most certainly issue these tyes of licenses as long as we are comfortable 692878v2 009207.0101 5 that the use wi not harm the value of the song by, for example, creating negative associations with the song in the mid of the public. 25. For example, Boure issued a synch license for a derivative work consisting of changed lyrcs for the song" Are You Lonesome Tonight" for use in the movie comedy" Game Plan." In that fil, the star, Duane "The Rock" Johnson sings the song in a funy manner to lure his pouting daughter our of her locked room, while the famiy dog howls at the singing performnce. He changes the song's original lyrcs half way through to joke about his attempt to cheer his daughter up. See Exh. A 26. We also licensed a lyrc change derivative work for the song "On the Good Ship Lollipop" for use in the motion picture" Child Star-The Shirley Temple Story." See Exh. A 27. Although "Star" has not yet been licensed in this way, Bourne certainly would license a comedic or satirc use of "Star" with lyrc changes so long as the derivative work did not tarnish or harm the public's association of "Star" with its theme of wholesome hopefulness and reward. 28. Indeed, Bourne has licensed several songs for comedic use on Famiy Guy in scenes depicting or discussing various ireverent or provocative themes. 29. For example, we licensed "Unforgettable" for use in a Famiy Guy scene where a very drunk Peter confesses to the famiy dog, Brian, that he loves him more than his wie Lois. Brian and Peter then break into song, singing "Unforgettable" over a visual of them that mimics the famous Natalie/Nat King Cole video from the late 90's. See Exh. A 30. We licensed "On The Good Ship Lollpop" for use in a Famiy Guy scene in which evil baby Stewie sings the song to exploit the adorable and endearig association it has in the mid of the public. Everyone is so captivated by Stewie's performnce of this classic song that they fail to 692878v2 009207.0101 6 see that his luggage is loaded with firearm, explosives and other weaponry as it passes through the x-ray machines. See Exh. A 31. We licensed "Popcorn" for a Famiy Guy scene in which 70s celebrity Charo gytes and sings a breathy interpretation of the instrumental as a guest on the Merv Grifin show while Merv is "popping" pils, which are presumbly ilcit. See Exh. A 32. We licensed "Witch Doctor" for use in a Famiy Guy scene in which Quagmie comments on gay marrage by makig a pun about intercoure and the breaks into his trademarked laughter which devolves into the nonsensical choru of "Witch Doctor." See Exh. A 33. As should be clear from the above examples, Bourne does not object to licensing its songs for comedy, includig ireverent or "edgy" comedy. 34. Defendants' particular use of "Star," however, is precisely the kid of highly offensive comedic content and lyrc change we would not want associated with "Star." 35. If television shows and other simar potential licensees were allowed to use Star without payig for a license, as Defendants did, the cumulative loss in license fees would obviously cause harm to the market for Star. 36. Such unlicensed comedic uses would also compete with and substitute for our licensed comedic uses. 37. For example, at any given point in time, there are only so many comedic uses for "Star" that wi be made. If one network sitcom, for example, were to use "Star" as part of a joke on the show durig a given season, a competing sitcom would avoid using "Star" so as not to appear as though they were copyig the firt show. That second sitcom, which would have paid a license fee, wi now choose another song to include in the show. In other words, every time "Star" is used 692878v2 009207.0101 7 without a license, one less licensed use of "Star" may be made and that is one less license fee that we wi earn. Also, unlicensed programs and movies using "Stat' would compete directly with and substitute for our licensed programs and movies when distributed in the DVD and other home video markets. I declare under penalty of pe~ur that the foregoing is true and correct. Executed on May 22, 2008, at New York, NY. 692878v2 009207.0101 8 EXHIBIT A

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