Fairey et al v. The Associated Press

Filing 233

MEMORANDUM OF LAW in Support re: 232 MOTION in Limine No. 4 to Exclude Certain Testimony of Neil Zoltowski.. Document filed by The Associated Press. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Cendali, Dale)

Fairey et al v. The Associated Press

Doc. 233 Att. 7

EXHIBIT G TO THE AP'S MOTION IN LIMINE NO. 4 TO LIMIT THE OPINION TESTIMONY OF NEIL ZOLTOWSKI

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Neil J. Zoltowski
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December 14, 2010
3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A P P E A R A N C E S: JONES DAY Attorneys for Plaintiffs & Counterclaim Defendant 222 East 41st Street New York, New York 11788 BY: JENNIFER B. SCHRAMM, ESQ. [phone] [e-mail] KIRKLAND & ELLIS, L.L.P. Attorneys for Defendant & Counterclaim Plaintiff The Associated Press 655 Fifteenth Street, N.W. Washington, D.C. 20005 BY: MICHAEL F. WILLIAMS, ESQ. [phone] [e-mail] CALDWELL, LESLIE & PROCTOR, P.C. Attorneys for Counterclaim Defendant One 3 Two & The Witness 1000 Wilshire Boulevard Suite 600 Los Angeles, California 90017 BY: ROBYN C. CROWTHER, ESQ. [phone] [e-mail] ALSO PRESENT: Aydaline Garcia, Legal Video Specialist Esquire Video Solutions

UNITED STATES DISTRICT COURT. SOUTHERN DISTRICT OF NEW YORK ------------------------------------------X SHEPARD FAIREY and OBEY GIANT ART, INC., Plaintiffs, Index No: VS. 1:09-CV-1123 (AKH) THE ASSOCIATED PRESS, Defendant/Counterclaim Plaintiff, VS. SHEPARD FAIREY, OBEY GIANT ART, INC., OBEY GIANT LLC and STUDIO NUMBER ONE, INC., Counterclaim Defendants. ------------------------------------------X VIDEOTAPED DEPOSITION OF NEIL J. ZOLTOWSKI Tuesday, December 14, 2010 New York, New York

Reported By: LINDA J. GREENSTEIN JOB NO. 315354

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December 14, 2010 9:58 A.M.

STIPULATIONS IT IS HEREBY STIPULATED AND AGREED by and between counsel for the respective parties hereto, that the sealing, filing and certification of the within Deposition(s) may be signed and sworn to before any officer authorized to administer an oath with the same force and effect as if signed and sworn to before the officer before whom said Deposition(s) was (were) taken; IT IS FURTHER STIPULATED AND AGREED, that all objections, except as to the form, are reserved to the trial.

Videotaped deposition of NEIL J. ZOLTOWSKI, taken by Defendant/Counterclaim Plaintiff, Pursuant to Notice, held at Kirkland & Ellis, L.L.P., 601 Lexington Avenue, New York, New York, before Linda J. Greenstein, a Certified Shorthand Reporter and Notary Public of the State of New York.

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Neil J. Zoltowski

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December 14, 2010
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NEIL J. ZOLTOWSKI A. It was people under my direction performed that analysis. Q. Are you referring to Mr. Dennis? A. Yes. Q. And Mr. Coffman? A. Mr. Dennis. Q. For purposes of this deposition, would you do me the favor of, if you've done something personally, then take ownership of it and say "I" or "I conducted this analysis." But, otherwise, if it was somebody else who conducted parts of your analysis, could you specify who did it for me? A. Yes. I will do my best to do so. Q. Just as a convention, if we could drop the "royal we" or the "editorial we," that would be useful for my purposes. You understand. A. Sorry. It's hard to teach an old dog new tricks. We do all of our work in teams,
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NEIL J. ZOLTOWSKI for postcards; correct? A. That's correct. Q. You didn't see any categories for commercial use at all; right? A. That's correct. Q. You've assumed in developing your opinions that there was a separate price guide that the AP possessed, but that you did not have available, that provided more accurate quotes for licensing fees? A. Yes. As I stated, I assumed so based upon Ms. DeGrave's testimony, as we discussed, where she is discussing that she would simply go to their standard price book to price out a certain number of handbags, as we discussed on pages 112 and 113, and then also a certain volume of T-shirts on pages 135 and 136. And since those categories are not listed within the editorial pricing guide, I assumed that what she was referring to was a separate pricing guide, which she would be able to reference to do that pricing determination.
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NEIL J. ZOLTOWSKI so it's always a collective we. Q. Understood. And I just want to make clear that when I ask "did you," I'm actually referring to you. And I'll try on my end to refer to your team, if I'm referring to your team. Okay? A. Sure. Q. At the time that you were reviewing The Associated Press's price guides that you had available to you in the course of preparing your opinions in this case, did you understand that there were categories that were not good fits with the items that you were reviewing? A. Yes. There were some that seemed to be better fits than others, but nothing that seemed to fit perfectly, since the pricing guides were for editorial use. Q. That is, you didn't see any categories for T-shirts; right? A. Correct. Q. You didn't see any categories

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NEIL J. ZOLTOWSKI Q. Do you believe that not having access to a separate AP pricing guide that related to commercial or promotional uses hampered your analysis? A. No, it did not. It would have been helpful to have had that pricing guide. However, Ms. DeGrave's testimony is that she and her team go to Getty Images to price out commercial uses when they don't have access to their own system. And, therefore, the Getty Images website provides a user to price out the use of an image on a commercial or promotional basis. Q. Did you ever say in your expert report that it would have been helpful to have the AP pricing guide that related to commercial and promotional uses? A. I don't believe so. Q. Do you believe as we sit here that it would have assisted your analysis to have any AP pricing guide that related to commercial and promotional uses at the
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Neil J. Zoltowski

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December 14, 2010
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NEIL J. ZOLTOWSKI offered that price to the licensee. Q. Based on that colloquy in this deposition, it's your opinion and it was your assumption in developing your report that there are instances where sales representatives from The Associated Press have no discretion to diverge from their licensing prices as set forth in the pricing guide? A. They may have discretion, but there's instances where they obviously don't need any discretion and they simply go straight to the book and pull the price. Q. My question wasn't about whether you believed there are instances where they don't need discretion. My question was whether you have any basis for stating that there are instances where the sales representative has no discretion; right? A. I do not, correct. Q. Do you have any basis for disputing the statement that The Associated Press views each licensing transaction as
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NEIL J. ZOLTOWSKI for the same use of the same image that is in the same quantities and to the same extent, The Associated Press would always quote the same price? A. That would be my assumption, and that comes from the fact that the AP utilizes the Getty Images pricing guidelines throughout the Getty Images website, and you can price various photos on that website for the same exact use. Different photos, and get the same exact price. Q. So the basis for your assumption is Ms. DeGrave's testimony about the use of the Getty images website? A. Yes. Q. Does Ms. DeGrave say in her deposition that the AP relies entirely upon the Getty Images website? A. No. She states that when they do not have access to their own pricing guide, they utilize the Getty Images pricing guide as a framework. Q. Do you know as we sit here
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NEIL J. ZOLTOWSKI unique? A. I would say, yes, unless it's the same image for the same exact use, then that wouldn't be unique. Q. What do you mean? A. Meaning if I decided to license a specific image for a thousand T-shirts that have the specific image printed on the front, and you go and ask for a license for a thousand T-shirts that are printed on the front, I would assume you would probably get the same price. Ms. DeGrave said there's no change in price based on demand, and she specifically states -- I think at one point she said, "The price is the price is the price of an image." Q. Did you say you would assume that they probably would get the same price? A. They most likely would get the same price, and I would say that most definitely would get the same price. Q. It's your sworn testimony that

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NEIL J. ZOLTOWSKI whether Ms. DeGrave was referring to the use of the Getty Images website as a factor or as something that would be a dispositive indication of price? A. I think she referred to it as an indication of price, specifically related to when their pricing image is out for their clients and they don't have access to their own system. Q. Is it your understanding that The Associated Press makes final licensing price decisions based on the Getty Images website? A. Based upon Ms. DeGrave's testimony, I think they utilize that and may either use it verbatim, off of the website, or they may tweak it slightly either way, rachet it up or down slightly. But I believe they use it as a guideline to come up with a price if they don't have access to their own system. Q. What's the basis for your testimony about "tweaking it up or down slightly"?
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Neil J. Zoltowski

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December 14, 2010
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NEIL J. ZOLTOWSKI A. I don't have a basis. It's simply on assumption based upon, the AP might have their own potential way of pricing off of the Getty Images website, but most likely would probably take it verbatim off of the website. Q. Why do you say "most likely would take it verbatim"? A. Simply from Ms. DeGrave's testimony. Q. Does Ms. DeGrave testify that she would take pricing from the Getty Images website verbatim? A. She states that she would utilize it when she has no access to her own system when she's pricing an image for a client. Q. Did she say that she would make final pricing decisions based on the Getty Images website? A. I don't recall. Q. Do you know whether she would make final pricing decisions based on the Getty Images website?
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NEIL J. ZOLTOWSKI upon as well. Q. What did Mr. Dale say? A. He simply stated that there were pricing guides that did exist within the AP, and those pricing guides were attached to his deposition as exhibits. Q. Apart from the existence of the pricing guides and the fact that they were attached to his deposition, did Mr. Dale say anything else that contributed to the assumptions that you relied upon in forming your report with respect to the AP's licensing structures? A. Also the Getty Images website, which Ms. DeGrave stated was utilized by the AP in certain instances. Q. How did the Getty Images website contribute to the assumptions on which you relied relating to the AP's licensing structures? A. The Getty Images website offers a user to price out an image for various commercial uses, and we went on that website to see if you priced out certain
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NEIL J. ZOLTOWSKI MS. SCHRAMM: Objection. Form. Speculation. BY MR. WILLIAMS: Q. Do you know? A. No, I do not know. Q. Is it fair to say that your entire basis for the assumptions that you made about the AP's licensing structure are based on Ms. DeGrave's testimony in her deposition? A. No, it is not. Q. What else was a factor? A. The AP produced a number of licenses in this litigation, which I reviewed. Q. That is, there were licenses that you considered and there was Ms. DeGrave's testimony; correct? A. Correct. Q. Was there anything else that formed the basis for your assumptions on the AP's licensing practices? A. There was additional deposition testimony from Mr. Dale that I've relied

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NEIL J. ZOLTOWSKI images for certain uses, what you would get for a license fee that must be paid by that licensee. Q. That's not the structure of the AP's pricing for its licensing; right? A. My understanding, as I stated previously, is that Ms. DeGrave states that the AP will use the Getty Images website when they don't have access to their own system. Q. The extent that the AP uses the Getty Images website is something that you learned about entirely from Ms. DeGrave's deposition testimony? A. Yes. Q. To the extent that Ms. DeGrave's deposition testimony on those points is unclear, you'll agree that your assumptions may also be misplaced? MS. CROWTHER: Objection. Assumes facts. A. Could you point me to where they would be unclear? Q. You were looking page 136?
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Neil J. Zoltowski

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December 14, 2010
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NEIL J. ZOLTOWSKI A. That testimony. That specific sentence that I read. Q. That it was fair for you to make the assumption that there was some instances that the AP would not diverge from the licensing guide based on the question and answer that you saw on page 136? A. What I'm going off of is Ms. DeGrave has a team which she oversees. She has faith in her team and she's just restating one of her best sales reps must have used the book because that's the price she quoted to a licensee. So, yes, based upon that testimony, based upon that sentence, and based upon that in general, yes, that's my opinion. Q. Based also on your assumption that there was a price guide that related specifically to the sale of the merchandise at issue there; correct? A. There had to have been a sales guide, yes, for her to actually price out
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NEIL J. ZOLTOWSKI from 12:17 p.m. to 1:15 p.m.) THE VIDEOGRAPHER: The time is 1:15. This begins Tape Number 3 of the Videotaped Deposition of Neil Zoltowski. BY MR. WILLIAMS: Q. Mr. Zoltowski, do you have any experience in news reporting? A. No, I do not. Q. Do you have any background in news reporting? A. No, I do not. Q. Do you have any experience in photojournalism? A. No, I do not. Q. Do you have any background in photojournalism? A. No, I do not. Q. Do you have any experience in photography licensing? A. No, I do not. Q. Do you have any background in photography licensing? A. No. Q. Before this case, have you had
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NEIL J. ZOLTOWSKI of what they call, quote-unquote, "the book." Q. But you're comfortable with the framing of the questions in this deposition and with the clarity of Ms. DeGrave's answers that you feel comfortable on extrapolating from these questions and answers your assumptions about the AP's pricing practices? MS. CROWTHER: Objection. Vague and compound. Q. I'll break it down. You're comfortable, based on the clarity of the questions and the answers in this deposition, in reaching the assumptions that you've made about the AP's pricing practices? A. Yes. I am. MR. WILLIAMS: Let's go off the record. THE VIDEOGRAPHER: The time is 12:17 and this ends Tape Number 1 of the Videotaped Deposition of Neil Zoltowski. (A luncheon recess was taken

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NEIL J. ZOLTOWSKI any experience whatsoever with respect to the licensing of photography? A. Not that I recall. Q. Before this case, did you have any cases involving copyrights for photographs? A. No, not that I recall. Q. Have you ever spoken to anybody outside of the context of this case about the market for licenses of images? A. No, I have not. Q. In the course of your work on this case, did you speak with anybody at The Associated Press about the market for photography licensing? A. No, I did not. Q. In the course of your work on this case, did you speak with anybody at Obey Clothing regarding the market for photography licensing? A. No, I did not. Q. In the course of your career, have you ever encountered anyone who put himself forward as an expert in the field
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Neil J. Zoltowski

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December 14, 2010
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NEIL J. ZOLTOWSKI for checkout in a shopping cart on the Getty Images website? A. Yes. That's what it appears to be. Q. Is this the image of President Clinton that you used in your analysis of what you called "a similar image under the considerations and criteria similar to this license"? A. Yes, it is. Q. Do you see there are restrictions on the use of this image of President Clinton? A. Yes, I do. Q. Is there a restriction on its commercial use; correct? A. Correct. Q. Under "Release Info," it says: "This image has no model or property release. Any commercial use requires additional clearance. Contact your local office to see if we can clear this image for you." Right?
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NEIL J. ZOLTOWSKI A. As I stated, I may or may not have. I just don't recall. Q. If there were additional limits on the commercial use of the image that you selected, would you agree with me that it isn't really a suitable image for determining the pricing point based on a pricing guide ' la carte basis with Getty Images? A. No. I think it still is a suitable proxy for an image, and it's possible that the clearance might be as simple as Getty Images understanding what exactly you're using the image for. Q. You don't know that one way or the other; correct? A. Correct. Q. You're speculating; right? A. Yes. Q. For all you know, Getty Images, upon receiving your call, would ask additional information about you and the uses and quote a different price; correct? A. It's possible.
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NEIL J. ZOLTOWSKI A. Yes. Q. It includes the same text after the header, "Restrictions"; correct? A. Correct. Q. Did you see these restrictions before you stated that you could purchase a license without contacting a sales representative for the photograph of President Clinton that you used? A. I don't recall. I stated that I had put it into my shopping cart and that's what I recall. That was -- I may have done it a month or month and-a-half ago, so it's possible. I don't believe I remember seeing that language, though. Q. Did you do anything else besides put it in your shopping cart? A. No, I did not. Q. After you put it in your shopping cart, did you review to see whether or not the screen created any limits on the commercial use of the image that you selected?

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NEIL J. ZOLTOWSKI Q. Do you have any reason for thinking that wouldn't be the case? A. I don't have reason to believe one way or another. Q. You relied upon the price for this President Clinton photograph in determining your conclusion for the most likely price of a subsequent license for 250,000 T-shirts used for retail use to promote political views; correct? A. Yes, that's correct. Q. You did so without speaking to anybody at Getty Images; correct? A. Yes, that's correct. Q. You did so without speaking to anybody at The Associated Press; correct? A. Yes, that's correct. Q. If, in fact, The Associated Press and Obey Clothing had engaged in subsequent licensing negotiations that attempted to expand upon an initial 5,000 unit license for merchandizing T-shirts, what is your opinion of the relative bargaining power between The Associated
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