Free Reply to Response to Motion - District Court of Arizona - Arizona

1 MESCHKOW & GRESHAM, P.L.C. 2 Lowell W. Gresham (AZ Bar No. 009702) 3 Suite 409 4 5 6
5727 North Seventh Street Phoenix, Arizona 85014-5818 (602) 274-6996 (602) 274-6970 (facsimile) Attorneys for Plaintiff Jordan M. Meschkow (AZ Bar No. 007454)

GILES LEGAL, P.L.C. 7 Nancy R. Giles (AZ Bar No. 020163) 8 Phoenix, Arizona 85007 9 (602) 252-1788 Attorney for Plaintiff 10 11 12 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Case No.: CV-04-0621 PHX SRB PLAINTIFF'S REPLY ON MOTION IN LIMINE TO EXCLUDE DEFENDANTS' EVIDENCE RELATED TO THE GROSS REVENUE OF AVNET, INC., DEDUCTIBLE EXPENSES FROM GROSS REVENUE, AND/OR ITS PROFIT(S) ATTRIBUTABLE TO FACTORS OTHER THAN THE COPYRIGHTED WORK (Oral Argument Requested) (Assigned to The Hon. Susan R. Bolton) Defendants' Response to Plaintiff's Second Motion in Limine contains many factual
733 West Willetta Street

DAN COOGAN, doing business as 13 COOGAN PHOTOGRAPHIC, 14 15 16 17 18 19 20 AVNET, INC., et al., Defendants. v. Plaintiff,

21 and legal inaccuracies. The order Plaintiff seeks is specifically an order "excluding any 22 evidence or references offered by any and all Defendants... that tends to contradict, or 23 directly contradicts specific financial information in Avnet's Annual Reports, Quarterly 24 Reports or its SEC filings as to Defendant Avnet, Inc.'s gross revenue, deductible expenses 25 from gross revenue, and documents related to elements of profit attributable to factors other 26 than the copyrighted work, from April 9, 2003 through October 14, 2005." This would 27 disqualify much data from Avnet's 2004 and 2005 Annual Reports or 2006 earning 28 statements, because Avnet did not use any of it to show "deductible expenses under 17
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1 United States Code § 504(b) against Avnet's gross revenue" or "elements of profit 2 attributable to factors other than the copyrighted work under 17 United States Code § 3 504(b) against Avnet's gross revenue". Avnet was asked for such in discovery; it chose not 4 to answer or seasonably update answers, even after its expressed second-part Polar Bear 5 objection/burden was shifted by an Expert Report. Moreover, Defendants have expressed a
1 2 6 unilateral disdain that Plaintiff is not entitled to claim profits before , after and during

7 Avnet's Responses to Plaintiff's Fourth Request for Production of Documents ("#4"). This 8 is unfortunate for them since 1) an initial showing of causal nexus was clearly or at least 9 arguably, made evident to Defendants on January 13, 2006, weeks before discovery ended, 10 2) Avnet chose to ignore it, 3) it was Avnet that had the duty to update answers, if it chose 11 to and did not, and 4) it was Defendants fault throughout the entirety of discovery that it 3 12 took Plaintiff until January 13, 2006 to make the causal nexus showing . This is why 13 Avnet's Response should be disregarded in its entirety, and this Motion should be granted. 14 I. 15 BACKGROUND Defendants simplistic statement that Plaintiff "seeks recovery for Avnet's profits

16 arising out of the unauthorized use of three of his photographs of Avnet CEO Roy Vallee" 17 (later claiming from where is unspecified) is incorrect on its face. It is because Avnet used 18 Plaintiff's photographs inextricably tied into a massive public relations campaign that advertised all of Avnet, Inc. as a whole4 that Plaintiff seeks recovery against all of Avnet's 19 profits during the unauthorized use of his photographs. Besides all Amended Complaint 20 (AC) uses and answers given during discovery, the post-discovery Second Supplement to 21 Plaintiff's Interrogatory No. 4, document 196, Ex. D (incorporated by reference herein as 22 SSP) reveals much: 23 1. The photographs were well circulated throughout Avnet's market, before and until the Supply-Chain Council (SCC) February 25, 2003 conference date (and Avnet supplied 24 the photograph to SCC between August and December 2002, but Avnet will not admit it). See Ex. D, Affidavits from SCC management company personnel and SSP at 4¶9. 25 2. Avnet's Public Relations department could not use the photographs enough: · Mr. Vallee was appointed to the Board of the Arizona Governor's Council on 26 Innovation and Technology (GCIT) in February 2003; Avnet promoted this in a This 27 1 28
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See Letter from Fennemore Craig, November 29, 2004, attached hereto as Ex. A. See Letter from Fennemore Craig, May 19, 2006, attached hereto as Ex. B. See Affidavit of Richard Weisgrau, and discussion, infra, attached as Ex. C Plaintiff even showed this to Defendants before discovery ended in a Report. Case 2:04-cv-00621-SRB Document 231 Filed 06/18/2006 Page 2 of 13

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5 1 Week at Avnet mass publication using Plaintiff's photograph. See Ex. E the February 9-13, 2003 This Week at Avnet · In April 2003, Avnet sent Plaintiff's photograph to the GCIT and left it on that 2 website until December 2005. SSP at 4,¶9. Numerous articles and descriptions of Mr. 3 Vallee included this appointment through the years, sending persons to the GCIT website to find him in Plaintiff's photograph. · Recently, Mr. Vallee was appointed GCIT co-chair, News hits from October to 4 December 2005; Plaintiff's photograph still accompanied Vallee's GCIT bio. See Ex. F; 5 Arizona Republic 11-30-05 article, page D2 closing paragraph reading, "Vallee and Fong are members of the...(GCIT) and have been named co-chairs for the coming year" | State 6 of Arizona News Release, October 25, 2005, titled Governor Names New Co-Chairs for Tech Council | Southbridge, Massachusetts US-NEWS-WATCH.COM 2003 site, with live 7 link to Mr. Vallee's infringing GCIT bio site until December 2005. · In 2004, Mr. Vallee was appointed to the Global Technology Development Council. 8 Avnet prominently used Plaintiff's photograph again in a January 25-31, 2004 This Week at Avnet and in the same issue, used it again to highlight a Town Hall Broadcast. See SSP at 9 3, ¶6; Ex. G, pgs. 1 and 2. In tandem, Avnet's Director of Marketing Communications, took but minutes to send one of the images to CRN (see Ex. H, AVN0037-42) that wound 10 up on CRN.com (AC Ex. 39 and 40) and on ChannelWeb.com (a #2 CRN/CMP Media, LLC site, see Ex. I)) and in the February 2004 large format CRN Magazine, while 11 Plaintiff's photograph of Mr. Vallee was front and center at www.avnet.com. See AC Ex. 4. Weeks later, Ms. Gorel could not recall sending the file. (See Ex. H, AVN0045). 12 3. Throughout all of this, Avnet distributed publications, emails, and Annual Reports with Plaintiff's photographs identifying Roy Vallee 13 Plaintiff discovered two `01 issues of Avnet Global Perspective (hereafter AGP(s)) 14 in 2001. SSP shows 16,000 copies each of were printed; yet neither the print tallies of 15 AGPs nor an Avnetink Online June 27, 2001 newsletter6 were revealed until discovery 16 closed. The new SSP closely defines the distribution number of all other Avnet

17 publications to 8,000 employees+ (pgs. 3-4). SSP and Ms. Crutchley's deposition 18 testimony shows that 42,000 extra AGPs must have been distributed to customers, 19 prospective customers and the like as "marketing collateral." Two 2001/one 2002 AGP 20 issues each had an extra 8,000 copies as collateral. For six other issues, 3,000 copies each 21 were marketing collateral, too. Each AGP identified Mr. Vallee in the CEO Message with 22 one or another of Plaintiff's photographs7. Combined with printed `02 (Resp., Ex. A at 13, 23 5,650 shareholders) and `03 (6,067) Annual Reports, 55,000 and 60,000 respectively, were 24 distributed. See Exs. P, Q. Tens of thousands more Annual Reports were downloaded. 25 The AC and the Court's October 24, 2005 Order illustrate how the parties settled the 26 known 2001 use of one of Plaintiff's photographs of Avnet CEO Roy Vallee in two AGPs, 27
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All issues of This Week at Avnet provided by Defendants had none of Plaintiff's pictures therein. The SSP answer should have included each of the 8,000+ copies by email On opening the cover thereof; one issue also used an image to headline a story. Case 2:04-cv-00621-SRB Document 231 Filed 06/18/2006 Page 3 of 13

Plaintiff attaches composites with Plaintiff's pictures therein, as Exhibits. 28 6
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1 one year after it appeared in Upside Magazine. The April `02 stock-photograph license 2 covered that, plus a prospective, limited license, for one years' use. Shortly thereafter,
8 3 Defendants breached the license contract , lost all licensed rights, and committed mass 9 4 public-relations and collateral use of Plaintiff's photographs that inextricably tied Plaintiff

5 into Avnet's goodwill, its sales, and its profits. This was the breach of a contract that would 6 have expired April 9, 2003, but for Avnet continuing to fully infringe into 2004, and 7 partially infringe into 2005. This and Avnet's refusal to provide or apply documentary 8 evidence to discovery questions mandating specific disclosure in the same date range are 9 why an Order excluding information or testimony "that contradicts specific financial 10 information in Avnet's Annual Reports, Quarterly Reports or its SEC filings as to 11 Defendant Avnet, Inc., deductible expenses from gross revenue, and documents related 12 to elements of profit attributable to factors other than the copyrighted work from 13 April 9, 2003 to October 14, 2005" should be granted. Moreover, while Plaintiff sought Avnet's uses, and circumstances therefor, in 14 15 interrogatories dated September 29, 2004, and Avnet mocked Plaintiff twice, only deciding 16 to update them again after discovery had ended, the same Defendants declined to update 17 18 19 20 21 22 23 24 25 26 27 28 #4 (see Ex. B) even though causal nexus was shown before discovery ended. It is not, nor ever was, Plaintiff's obligation to identify profits or income streams related to the infringements to the satisfaction of Defendants during discovery. The law is clear, and defendants' objections in #4 even show this: "17 U.S.C. § 504(b)... creates a two step framework for the recovery of indirect profits: (1) the copyright claimant must first show a causal nexus between the infringement and the gross revenue; and (2) once the causal nexus is shown, the infringer bears the burden of apportioning the profits that were not the result of infringement. See Polar Bear Productions, Inc., 384 F.3d 700, 711 (9th Cir. 2004)". Plaintiff performed the first step on January 13, 2006 by serving Expert Richard Weisgrau's Report on it. Defendants'
i.e., Avnet published its infringing 2002 Annual Report on October 8, 2002. See SSP, page 5. Via third party promotion, public-relations announcements, articles glorifying the Avnet CEO and Avnet, including product and company advertising via collateral use of infringing Annual Reports and other pieces having Plaintiff's photograph prominently attached to the CEO. Case 2:04-cv-00621-SRB Document 231 Filed 06/18/2006 Page 4 of 13
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1 gratuitous out-of-context quote of Expert Witness Jeff Sedlik's Supplementary Report, 2 Response at 5, further reminded Defendants of this thereafter ("I do not expect to opine or 3 testify as to the specific amount of disgorged profit that is attributable to the infringements, 4 nor do I intend to opine or testify as to specific deductible expenses or to elements of 5 Avnet's profit not attributable to the infringements. These calculations are Avnet's 6 burden."). The quoted phrase in Response at 4 was used in the context of not being able to 7 identify "any profits or income streams related to the infringements" but both Experts 8 identified all profits based on the extended term and uses of the photographs. Defendants 9 did not, and refuse to carry their burden by updating discovery answers. They thereby 10 abandoned their opportunity to perform the second step above under FRCP, Rule 37. 11 12 13 14 15 · · 16 17 18 19 20 · · The Court is respectfully reminded that: Under 17 U.S.C. §504(b), Plaintiff's actual damages/profits are based on two related statutes. Section 501(a) states "Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106..., is an infringer of the copyright..., as the case may be." Then, §106, delineates in six sub-sections (four applicable here), the exclusive rights; (1) to reproduce the... work in copies..., (2) to prepare derivative works based upon the... work; (3) to distribute copies... of the... work to the public...; and (5) in the case of... pictorial... works... to display the copyrighted work publicly. Plaintiff sought all such uses in interrogatories served September 29, 2004. Defendants mocked Plaintiff with a nonsense narrative answer November 1, 2004, and Defendants also mocked Plaintiff again in a March 2005 updating. See discussion regarding this in at least documents 183-187, as well as the discussion in documents 47 and 91, now dismissed, all incorporated by reference, herein. Defendants' escaped being compelled twice from two Motions to Compel answers on the interrogatory and a related document request, based on 10 technicalities that would have yielded documents that would have taken the place of #4 . After the Summary Judgment Order, Plaintiff, without proper interrogatory answers propounded a year earlier, was forced to blindly serve discovery requests about which

21 Defendants counsel C. Houston complained. In mid-November 2005, the undersigned and 22 Mr. Houston agreed: defense counsel would not have to directly respond; rather they could 23 provide related documents in disclosures (i.e., the docket shows there was no Response to 24 Plaintiff's First Request for Documents to Allen Maag). Yet, when Plaintiff's counsel 25 agreed to this, he never expected such to piecemeal answers and disclosures like 26 Defendants did, concurrently extending Allen Maag's and others' deposition for a total of 27 28
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11 1 three times ; the main reasons why a final extension of discovery into January was

2 necessary and why Defendants had to seek an extension to depose Plaintiff's experts. It
12 3 also caused Plaintiff to only be able to first show causal nexus in January 2006 : · December 1, 2005: Defendants served Avnet's 3rd Supplemental Disclosure Statement (SDS), and for the first time disclosed documents indicating how many copies of the 4 two annual reports were made by Avnet, Inc., using any one of Plaintiff's photographs. th 5 · December 6, 2005: Defendants served Avnet's 4 SDS, and for the first time disclosed the first complete set of printed AGPs with any one of Plaintiff's photographs, the first complete copies of printed Avnet 2002 or 2003 Annual Reports ever served by 6 Defendants to Plaintiff, and the first prints of assorted files Avnet used (though PDF files of the magazines13 and the annual reports, and image files of the assorted picture 7 files were provided by Defendants electronically on th by letter on October 17, 2005). CD 8 · December 22, 2005: Defendants served Avnet's 5 SDS, and for the very first time disclosed documents indicating how many Annual Reports were distributed by Avnetvendor Corporate Communications Center, Inc., a select group of requests for Annual 9 Reports, and a select group of emails to and from Avnet personnel (and responses, including Morgan Stanley personnel) from February and March 2004. 10 · December 28, 2005: Defendants served Avnet's 6th SDS, and for the first time disclosed documents concerning Allen Maag's earnings, performance reviews, and 11 stock and pension plan. th 12 · December 29, 2005: Defendants served Avnet's 7 SDS, and for the first time disclosed documents concerning Avnet's invoices for a select group of Annual Reports, Allen Maag's stock options, and an email showing Avnet transferred at least one of Plaintiff's 13 photographs to the GCIT. th 14 · January 5, 2006: Defendants served Avnet's 8 SDS and for the first time disclosed documents concerning additional years' on two appraisal forms and 3 fiscal year income plans for Allen Maag, pension plan documents for Allen Maag, and Allen 15 Maag's earnings statements. 16 All of this information would have been requested differently and received much 17 earlier, if only Avnet had properly investigated and reported on its actual use in November 18 2004, like it tried to March 14, 2006 with SSP. This case would have been more on track 19 with far fewer extensions than were requested, fewer disclosure statements, thus making 20 time for taking all depositions that were needed. As it stands now, Plaintiff's case was 21 hampered and biased by Defendants stalling in identifying its uses of Plaintiff's 22 photographs, instead of if they had done so timely when first propounded. Within this 23 massive delay, Defendants answered Plaintiff's Third Request for Admissions (#3) on 24 December 6, 2005 (Ex. A, document 180, incorporated by reference, herein). In #3, Avnet 25 admits that it covets and is pleased with international recognition and, that it used 26 Plaintiff's photographs for "public relations", "community relations", "investor relations",

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Plaintiff also lost the opportunity to depose Javad Badar and Bob Hackett over such maneuvers.

28 See J. Meschkow letter January 31, 2006, attached as Ex. J. 12
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The docket for the case confirms each of these dates for the Court. Defendants never disclosed whether these PDF AGP issues were circulated. Case 2:04-cv-00621-SRB Document 231 Filed 06/18/2006 Page 6 of 13

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1 "corporate communications". Further admitted is that Mr. Maag "is responsible for "brand 2 management"". Yet, Avnet denied using Plaintiff's photographs for "brand management", 3 despite that Allen Maag's biography on the Avnet.com website says Mr. Maag "is 4 responsible for brand management, which includes global public relations, investor 5 relations marketing, community relations and corporate communications". Emph. added. 6 Plaintiff's Expert Richard Weisgrau could show differently, so this Response, with
rd th 7 Avnet's 3 to 8 Disclosure Statements were sent to Mr. Weisgrau and this enabled him to

8 be able to generate his Supplemental Report on branding and indirect profits, dated January
14 9 12, 2006 (the "1/12/06 Report") ; served January 13, 2006; weeks before the final 10 discovery cut-off. Since this report firmly laid out how Avnet used imagery to brand itself

11 before its customers, investors, and others, and that this imagery was Plaintiff's 12 photographs, Mr. Weisgrau opined all of Avnet's profit was relevant regardless of which 13 division or geographic divisions earned it, because Avnet used Plaintiff's photographs 14 uniquely to brand itself through its CEO in two of Avnet's one and only yearly Annual 15 Reports, on its one-and-only www.avnet.com home page, and in other ways. See Ex. C and 16 Mr. Weisgrau's deposition testimony, particularly where, his timely correction (see Ex. L, 17 18 19 20 21 22 again omitted by Defendants) states: "I have no idea or opinion about what income is directly attributable to the infringement because I have not been provided with the information that would be required to make such a determination. Still, all of Avnet's profits for the years it used Coogan's photographs on its Website home page, CEO Vallee's page, and in its Annual Reports are subject to being attributable to the infringements." ANALYSIS The Instant Motion is a Motion in Limine; not a Motion to Compel, or a Discovery Motion Plaintiff's Motion is not and was never intended to be a discovery motion. This is because #4 was served December 28, 2005, while depositions in October were still being moved through December to January (and suggested by defense counsel into February 2006) making this impossible. See Ex. J. This is also because 1) this was not the first time
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1 Defendants unilaterally made clear they believed Plaintiff was not entitled to profits before, 2 during and after discovery, despite the #4 Requests 2) there was no actual time left to meet 3 and confer on this 3) or file a Motion to Compel (by the January 2006 deadline), and 4) 4 discovery is now closed. Next, because Plaintiff served an Expert Witness Report detailing 5 profits entitlement on January 13, 2006, Defendants then had the obligation to update, 6 during or shortly after discovery ended, as it claims it did with its SSP update (although 7 these were anything but seasonable or wholly accurate). See FRCP, Rule 26(e)(2): 8 9 10 A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. (Emphasis Added)

11 Defendants learned their response was materially incorrect from the Report, and did not 12 update. They refuse to do so, now. They made this clear before, during, and after discovery 13 ended, as well. See Exs. A and B, and #4. 14 Moreover, a Motion in Limine is "A written Motion... made before... the beginning

15 of... a trial" or "A request submitted to the court before trial in an attempt to exclude 16 evidence from the proceedings." See Motion in Limine from Nolo (at nolo.com), "the 17 nation's leading provider of do-it-yourself legal solutions for consumers and small 18 businesses", and Black's Law Dictionary, both in Ex. M. That is what the instant Motion 19 was and remains; it was not to compel flatly refused and not updated answers. B. Defendants Failed to Accept the Burden to Apportion Profits after Plaintiff 20 Demonstrated a Causal Nexus as of January 13, 2006 21 On January 13, 2006, Plaintiff served on Avnet the 1/12/06 Report. This report

22 analyzed thoroughly why Plaintiff met his Polar Bear burden and concluded with: As previously cited in this report, Avnet considers its ROI on advertising to be 1.5, 23 i.e., a fifty percent return. At the minimum, following Avnet's own prescription, the profits to which Dan Coogan is entitled ought to be no less than 1.5 times whatever 24 his actual damages are in determined to be. At the maximum, since Avnet has not produced "the elements of profit attributable to factors other than the copyrighted 25 work" Coogan's entitlement ought to be $786,900,000. 26 Moreover, it concluded this number because ""Avnet, thus far, has not met its full burden. 27 It had failed to produce or demonstrate in any manner "the elements of profit attributable to 28 factors other than the copyrighted work." This report clearly establishes the link between
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1 profits, public relations, advertising, and Dan Coogan's infringed photographs... This 2 report, therefore, establishes Avnet's actual profit dollars that are attributable to the 3 infringement at $786,900,000 unless and until Avnet meets its burden of showing "the 4 elements of profit attributable to factors other than the copyrighted work."" Ex. K at 16. 5 Whether or not Defendants believed this Report, it shifted the Polar Bear (at 771) burden. 6 The test itself is "the copyright claimant must first show a causal nexus between the 7 infringement and the gross revenue." There is no requirement to show any particular 8 revenue stream when all revenues are ostensibly subject from ads directed to all of the 9 company. The 1/12/06 Report was a call to Avnet that Plaintiff had met his burden as to 10 each and every revenue stream, and that it should seasonably update Plaintiff's other 11 questions in #4 on "the elements of profit attributable to factors other than the copyrighted 15 12 work" because Expert Weisgrau found at least 1) Avnet was advertising itself with 13 Plaintiff's Photographs in Avnet's one and only Annual Reports (which cover all divisions 14 and global companies of Avnet) two years running and 2) its one and only website (which 15 covers all of Avnet, Inc.). Moreover, the 1/12/06 Report was a carefully crafted study by 16 one who dealt with Public Relations agencies during his fifteen year tenure as Executive 17 18 19 20 21 22 Director of the American Society of Media Photographers, the nation's premier organization of photographers who produce photography for all types of media use. He also served public relations clients in his 21 year career as a professional photographer, and during that time he gained knowledge of the role of photography in public relations See Ex.
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C. Because Avnet did not disclose elements of profit attributable to factors other than the copyrighted work during discovery, it cannot now at trial. Plaintiff's Showing of Causal Nexus is Based on Goodwill and a Sales Connection Defendants Response argues "Plaintiff offers evidence of alleged enhanced goodwill

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25 to Avnet caused by the use of his photographs. He [Plaintiff] argues that the enhanced 26 goodwill demonstrates a causal nexus between the infringement and all of Avnet's gross 27 revenues from its global operations. Based on the enhanced goodwill, he concludes that he 28
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1 is entitled to recover Avnet's gross profits from all of its global operations (hundreds of 2 millions of dollars)." This is incorrect. Plaintiff showed a direct causal nexus to sales 3 because Avnet advertised all of itself with them, and Avnet makes sales; and Avnet used 4 two years of Annual Reports as "marketing collateral"; this use alone induces direct sales. 5 Plaintiff served a report during discovery that established causal nexus. Plaintiff need not 6 prove more to shift his burden. Still, besides Annual Report use, Avnet used an additional 7 42,000 AGP pieces as collateral. This shifts the burden, more. As a minimum, it should not 8 be up to the Defendants to determine whether they are satisfied that a burden has been met 9 before they will comply with discovery requests or stand fast on their positions. Obviously, 10 a defendant will never be so satisfied. Any rule holding that plaintiff must satisfy 11 defendants' sense of when a burden has been met before a defendant is obligated to honor a 12 plaintiff's discovery request is simply a license for defendants to avoid discovery requests. 13 D. 14 15 Avnet has Not Produced All Relevant Documents to Show its Deductions and Elements Attributable to the Infringement of Plaintiff's Photographs in Discovery and now has Lied to this Court Again Avnet's `02 Annual Report shows all its information as of Years Ended June 28,

16 2002. Resp., Ex. A at 1. Avnet produced its `03 Annual Report and it shows information as 17 of Years Ended June 27, 2003. Since all of Avnet's infringement is effective from its 18 October 8, 2002 contract breach date (with a retroactive claim against the two 2001 AGPs), its 2003 Annual Report is relevant to June 27, 2003. Yet, Avnet's major infringement goes 19 to at least February 2004 with home page use, plus the CRN Magazine infringements, 20 aggravated into 2005 with continuing `02 and `03 Annual Report distribution and display 21 use on the GCIT site. When asked for such during discovery, Avnet never provided its `05 22 Annual Report (with both `04 and `05 numbers). Nor did Avnet attempt to provide relevant 23 applied information from its 2004 or 2005 Reports as to deductions to the gross revenues 24 from infringement, or elements of profit attributable to factors other than the copyrighted 25 work, even though it says it has relevant information. No matter what percent or portion of 26 profits Plaintiff is entitled to, Avnet has not fulfilled its Polar Bear burden of "apportioning 27 the profits that were not the result of infringement" or its discovery obligation; therefore, 28
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1 all information including deductions and establishing elements of profit attributable to 2 factors other than the copyrighted work from April 9, 2003 to 2005 (all information past 3 the contract expiration date) should be precluded. 4 Also, in document 224 at 5, filed June 13, 2006, Defendants boldly lie: "A "first 5 use" fee is not applicable because Avnet previously used the photos pursuant to the one 6 year license agreement with Plaintiff." SSP disclosed brazen unlicensed, not covered by the 7 license first uses just before making this assertion: A widely distributed newsletter made 8 with a scan from the July 2001 Upside Magazine itself on June 27, 2001. See SSP, at 2. 9 Moreover, this scan, inserted into the newsletter comprises a reproduction and creation of 10 a derivative work and was never before disclosed. Plus, at 2 the SSP says: "The electronic image of this scanned photo was created on or about June 27, 2001. The image was used in an e-mail for employee, investor, and public relations (see 11 Ex. A). The e-mail was sent to approximately 8,000 employees. In addition, the email went to approximately 100 analysts who follow Avnet's stock, Avnet's public 12 relations firm, and a few journalists who follow the industry. The e-mail provided a link to an intranet site. The intranet site had a copy of the image from 13 approximately June 27, 2001 until approximately February 2004" 14 This answer omits that the primary Latest Reprints link in the e-mail was a downloadable 15 PDF copy of the full July 2001 Upside Magazine four-page article of pages 48-52, also 16 scanned at least as early as June 27, 2001, and the newsletter went to Avnet's PR firm, 17 making for free unlimited uncountable, undiscoverable downloads and forwards. See 18 SSP's Ex. A, the June 27, 2001 Avnetink Online (Ex. N16) and the July 2001 Upside 19 Magazine four-page article (Ex. O17). Note the language at the top of Ex. N, where above 20 the image is a headline REPRINTS NOW ACCESSIBLE HERE and a link below it 21 (obviously forwarding to page 6 of the newsletter). On page 1, it reads: 22 23 24 25 26 27 28 Remember to check the "Latest Reprints" section in the right column. This issue of Avnet INK Online features a four-page interview with Roy Vallee entitled "The Evolution of Distribution" that appears in the July UPSIDE magazine. Roy describes the history of distribution and tells about Avnet's business, from its beginnings on New York's Radio Row to where we are today. This is a keeper! This says the article is four pages, and even though the cover is included here; Avnet chose to start it with Plaintiff's 2/3 page-size photograph. This was a public relations advertisement for Roy Vallee and Avnet, which is but one use of Plaintiff's photographs
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The issue of Avnetink Online provided by Defendants omitted Plaintiff's pictures therein. The Exhibit is a composite with Plaintiff's picture therein. 17 Ex. O was not the PDF Avnet attached; rather a new scan to show the Court. Case 2:04-cv-00621-SRB Document 231 Filed 06/18/2006 Page 11 of 13
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1 Defendants never specifically revealed to Plaintiff (and as will be shown at trial, this 2 failure or reluctance to disclose all uses has been pervasive through this matter). The PDF 3 link to this article on page 6, where it says "Latest Reprints" and then Avnet, Inc. July 2001 4 The Evolution of Distribution (Upside) and is clearly shown by a classic PDF file icon next 5 to this. 6 Then, Avnet said to all recipients, including its own PR firm "This is a keeper!" 7 Yet, Avnet has not produced it (the Upside Magazine article PDF file), or any related 8 documents from its PR firm showing how far and wide Avnet's PR firm further distributed 9 this PDF file of the article. Avnet and its PR firm did such a thorough job dispersing all 10 Avnet's Stevie Award news, Mr. Vallee's appointments to both the GCIT, and the Global 11 Technology Development Council (the former winding up as far as Massachusetts, and the 12 latter, the basis of Mr. Vallee's CRN Magazine interview), Plaintiff asks this Court to take 13 judicial notice of the dispersion, in due fairness to Plaintiff from Defendants' post14 discovery cut-off disclosure. This email, Avnet's initial infringement, was hidden from 15 Plaintiff until discovery was over. It was also not included in the contract. See AC Ex. 2. 16 III. 17 CONCLUSION Plaintiff met his burden on making an initial showing of causal nexus on January 13,

18 2006. Because Avnet has refused to show complete relevant financial information, 19 deductible expenses and elements of profit attributable to factors other than the copyrighted 20 work, from April 9, 2003 through October 14, 2005 throughout this matter, granting of 21 Plaintiff's Motion is in order. Additionally, Defendants have lied to this Court again. 22 Defendants should be sanctioned by the Court for this. 23 Respectfully submitted this 18th day of June, 2006, 24 s/Jordan M. Meschkow 25 Jordan M. Meschkow MESCHKOW & GRESHAM, P.L.C. 26 5727 North Seventh Street Suite 409 27 Phoenix, Arizona 85014 28 ATTORNEYS FOR PLAINTIFF
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Nancy R. Giles GILES LEGAL, P.L.C. 733 West Willetta Street Phoenix, Arizona 85007 ATTORNEY FOR PLAINTIFF
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CERTIFICATE OF SERVICE I hereby certify that on 18 June 2006 I electronically transmitted the attached document to the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Jordan Green FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants and Nancy R. Giles GILES LEGAL, P.L.C. 733 West Willetta Street Phoenix, Arizona 85007 Attorney for Plaintiff

/s Jordan M. Meschkow

Document 23113 Filed 06/18/2006

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