Free Lodged Proposed Document - District Court of Arizona - Arizona

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 26 27 28 Nancy R. Giles (AZ Bar No. 020163), GILES LEGAL, P.L.C., 733 West Willetta Street, Phoenix, Arizona 85007, (602) 252-1788 (telephone and facsimile) For Plaintiff Dan Coogan, doing business as Coogan Photographic Defendant(s): Jordan Green (No. 001860), Lawrence Palles (No. 020263), FENNEMORE CRAIG, 3003 North Central Avenue, Suite 2600, v. AVNET, INC., et al., Defendants. Pursuant to the Scheduling Order previously entered, the UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, doing business as COOGAN PHOTOGRAPHIC, Plaintiff, Case No.: CV-04-0621 PHX SRB JOINT PROPOSED PRETRIAL ORDER

following is the Joint Proposed Pretrial Order to be considered at the Final Pretrial Conference set for June 26, 2006, at 9:00 a.m. before Judge Bolton. A. TRIAL COUNSEL FOR THE PARTIES (Include mailing address, office phone and fax numbers). Plaintiff(s): Jordan M. Meschkow (AZ Bar No. 007454), Lowell W. Gresham (AZ Bar No. 009702), MESCHKOW & GRESHAM, P.L.C., 5727 North Seventh Street, Suite 409, Phoenix, Arizona 850145818, (602) 274-6996, (602) 274-6970 (facsimile)

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Phoenix, Arizona 85012-2913 (602) 916-5000, (602) 9165999(facsimile) For Defendants Avnet, Inc., Roy Vallee, and Jane Doe Vallee, husband and wife, and Al Maag, and Jane Doe Maag, husband and wife STATEMENT OF JURISDICTION/VENUE. Cite the statute(s) or

rule(s) which give(s) this Court jurisdiction and venue. Jurisdiction is proper in this matter pursuant to 17 U.S.C. § 101 et seq., 28 U.S.C. § 1338, and the laws of the State of Arizona. Venue is vested in this Court pursuant to 28 U.S.C. § 1400 (a) and State of Arizona jurisdiction. NATURE OF ACTION. Provide a concise statement of the type of

case, the cause of the action, and the relief sought. This is a multiple count copyright infringement/breach of contract case wherein the plaintiff sought judgment on both issues and liability counts. On summary judgment, defendants were held liable jointly to have willfully infringed the copyright counts and to have breached the contract between plaintiff and defendant Avnet, Inc. The plaintiff can make an election between actual damages and statutory damages (any time before final judgment). Here, plaintiff seeks either actual damages in an amount to be determined with or without indirect profits in an amount or amounts to be determined under 17 U.S.C. § 504(b) or maximum statutory damages under 17 U.S.C. § 504(c) based on various facts and case law to be established at trial and/or briefed shortly thereafter, and/or actual damages in an amount to be determined under Arizona law concerning damages in contract cases, and costs and attorney's fees under 17 U.S.C. § 505 and A.R.S. 12-341 and 12-341.01. The plaintiff also seeks damages from the individual defendants severally, based on various facts and case law to be established at trial and/or briefed shortly thereafter. JURY/NON-JURY. State whether any party has demanded a jury

trial of all or any of the issues and, if so, whether each adversary accepts or contests the demand for jury trial.

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Neither party has demanded a jury trial of all or any of the issues. CONTENTIONS OF THE PARTIES With respect to each count of the complaint, counterclaim or cross-claim, and to any defense, affirmative defense, or the

rebuttal of a presumption where the burden of proof has shifted, the party having the burden of proof shall list the elements or standards that must be proved in order for the party to prevail on each claim or defense and set forth the relief (e.g. monetary damages), if any, claimed by each party. Citation to relevant and/or controlling legal authority is required. Plaintiff Contends The Defendants jointly have been held liable to Counts I, IV, and V of the amended complaint. Thus, the only remaining issues in this case are liability under Count III in the case, the type and amount of damages and the liability of the individual defendants. Damages Pursuant to 17 U.S.C. § 504(a) "an infringer of

copyright is liable for either - (1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or (2) statutory damages, as provided by subsection (c)." subsections (c)(1) such and as Pursuant to 17 U.S.C. § 504 in case, the case of willful any one

(c)(2), in this

infringement,

"for

which

infringer is liable individually, or for which any two or more infringers are liable jointly and severally", "the

court in its discretion may increase the award of statutory

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damages

to

a

sum

of

not

more

than

$150,000"

and

"The

copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and

profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of ... as the court considers just." (Emphasis

Added).

Plaintiff intends to make such an election before

final judgment is rendered. With respect to statutory damages under 17 U.S.C. § 504(c)(2), Plaintiff contends that Defendants should be

liable for the maximum statutory award of $150,000 because "the court must consider the amount of money at stake in relation to the seriousness of Defendant's conduct."

Twentieth Century Fox Film Corporation v. Steve Streeter, 2006 U.S. Dist. LEXIS 12358 (D. Az. 2006) citing Pepsico, Inc., et al. v. California Security Cans, et al. 238

F.Supp.2d at 1176 (D. Cal. 2002).

This willful infringement

by a large Fortune 500 company should be considered serious. ""Factors the Court can consider in determining the

amount of a damages award [under §

504(c)] are: the expense

saved by the defendant in avoiding a licensing agreement; profits reaped by defendant lost to in the connection plaintiff; with and the the

infringement;

revenues

willfulness of the infringement... The Court can also consider the goal of discouraging wrongful conduct." Controversy

Music v. Shiferaw, 2003 U.S. Dist. LEXIS 15224, 2003 WL

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22048519

at

*

2

(N.D.

Cal.)

(citations

omitted)."

Sony

Computer Entertainment America, Inc. v. Steven Filipiak, 406 F. Supp. 2d 1068, 1074 (D. Cal. 2005). this Court can consider: · Defendants infringement saved expenses of what a Plaintiff contends

Fortune 500 company would have expected to pay for photographs used in a public relations campaign; · Defendants reaped profits as a result of this public relations campaign based on the infringements; · Plaintiff lost revenues due to Defendants'

infringement; · · The Defendants willfully infringed; and Defendants infringing conduct was wrongful. Maximum damages policy are of necessary to

Plaintiff's contention: achieve wrongful the goal conduct and

statutory and

discouraging infringement.

discouraging

""Furthermore, "because awards of statutory damages serve both compensatory and punitive purposes, a plaintiff may

recover statutory damages whether or not there is adequate evidence of the actual damages suffered by plaintiff of the profits reaped by defendant." Los Angeles News Service v

Reuters Television Intern, Ltd, 149 F3d 987, 996 (9th Cir 1998). The availability of statutory damages ensures there will always be an avenue open to sanction an infringer and vindicate the statutory policy of discouraging infringement. See id. Statutory damages are particularly appropriate in a

case, such as this one, in which defendant has failed to mount any defense or to participate in discovery, thereby

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increasing the difficulty of ascertaining plaintiff's actual damages." Jackson v. Sturkie, 255 F. Supp. 2d 1096, 1101 (D. Cal. 2003). The "based court upon can also award and maximum statutory nature damages of by the the

the and

egregious the damage

willful to

infringement

caused

plaintiff

infringement, Perfect 10, Inc. v. Talisman Communs., Inc., 2000 U.S. Dist. LEXIS 4564 (D. Cal. 2000). An example of

egregious is explained in Warner Bros. Entertainment Inc., et al., v. Carmine Caridi, et al., 346 F. Supp. 2d 1068 (D. Cal. 2004); where: Caridi was provided complimentary screeners by Warner Bros. Caridi signed an Acknowledgment in which he agreed not to allow the screeners to be copied. In addition, the screeners carried a notice which warned viewers that "any duplication, transmission, or public exhibition of the material contained in this DVD/video cassette is a violation of federal law." Finally, a special disclaimer periodically appeared on screen that reminded viewers that the screener was the property of Warner Bros. Nevertheless, Caridi ignored these warnings and breached his promise not to allow the screeners to be reproduced. Given such egregious conduct... -- an award of the statutory maximum ($ 150,000 per work) is warranted here. In the present case, Defendants obtained an April 9, 2002 limited license in a contract to use Plaintiff's photographs after 1) Defendants infringed Plaintiff's copyright a first time in two fall 2001 Avnet Global Perspective magazines, 2) were told the photographs were registered for copyright in October 2001 and warned of copyright infringement, 3) agreed to a one-year term from April 9, 2002, and 4) were excluded Annual Report use, and third-party transfer use. By October 2002, defendants and ignored their license, Annual breached Report the with

contract

released

the

Avnet

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Plaintiff's Defendants

photograph used

(and

were

preparing

it

earlier). from

Plaintiff's

photographs

extensively

April 2003 to February 2004, inducing a public relations campaign with no less than four issues of Avnet Global

Perspective, another Annual Report, transferring the image to several third parties for literally publicity use, and then posting Plaintiff's image on its one and only home page at www.avnet.com, until Defendants were caught infringing again! Moreover, Defendants not only actively transferred photographs to third-parties for them to be

Plaintiff's

used; Defendants permitted unlimited third-party download of Plaintiff's photographs from the Avnet website. contends this was egregious willful infringement. During this litigation, in addition to facts when the Summary Judgment was at issue, these Defendants: · so used Plaintiff's photographs their value was destroyed; · Defendants failed to stop distributing all Plaintiff

infringing items after litigation commenced, and failed to of cease printed infringing, 2002 and continuing 2003 Annual

distribution

Reports through October 2005; · Defendants misrepresented to Plaintiff and the

Court they ceased all such use "immediately", · The Defendant he Roy had Vallee the failed to to stop stop by a

infringement

power

controllable, close third-party with public use of Plaintiff's Photographs on the Arizona Governor's

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Council

on

Innovation

and

Technology

(GCIT)

website through December 2005, from the time the instant lawsuit was served upon him in May 2004. Defendants conducted such poor investigations of facts sought since discovery began in this matter in September 2004, only attempting to complete

such and trying to rely on such, now, after the discovery cutoff date. When discovery commenced, Defendants conducted such a investigation, it took until March 2006 to finally

supplement an answer to a September 2004 interrogatory as it should have been answered 1 November 2004. Then, in March of 2006 (after discovery closed), Defendants disclosed a July 2001 use by Avnet of one of Plaintiff's copyrighted

photographs, never before known, and not included in the April 2002 contract. by This case has been significantly first

hampered

Defendants

evading

Plaintiff's

interrogatories throughout the entirety of discovery, only providing a meaningful, but still incomplete answer to its uses of Plaintiff's photographs in Interrogatory No. 4 from Plaintiff's First Set of Interrogatories, served September 29, 2004. This will be established at trial. Additionally, while defense counsel actually called it "scrubbing" during litigation; Plaintiff contends Avnet made a concerted effort to remove and hide much evidence during discovery, trial. i.e., spoliate. This will be established at

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In

order

to

portray

an

accurate

amount

of

actual

damages under 17 U.S.C. § 504(b), Plaintiff contends first, 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 listed below). This makes each of Defendants'

trespasses on exclusive rights granted under 17 U.S.C. 106 a distinct use of Plaintiff's photographs. The exclusive

rights granted under 17 U.S.C. 106 are: (1) to reproduce the copyrighted work in copies ...; derivative works based upon the

(2) to prepare copyrighted work;

(3) to distribute copies... of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; ... (5) in the case of... pictorial... works..., to display the copyrighted work publicly Additionally, under 17 U.S.C. § 504(b), the "actual

damages and any additional profits of the infringer" are to be calculated as "the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross

revenue, and the infringer is required to prove his or her

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deductible expenses and the elements of profit attributable to factors other than the copyrighted work." (Emphasis

Added). According determined copyright, by to the case loss by law, in "Actual fair damages market lost are value due usually of to the the

the

measured

the

profits

infringement or by the value of the use of the copyrighted work to the infringer." Polar Bear, 384 F.3d at 707-08

(quoting McRoberts Software, Inc. v. Media 100, Inc., 329 F.3d 557, 566 (7th Cir. 2003)); see also Mackie v. Rieser, 296 F.3d 909, 914 (9th Cir. 2002). Yet, fair market value of what Defendants paid

Plaintiff beforehand, is irrelevant to the infringement that occurred, now. Avnet did not offer Coogan the opportunity

to establish a fair market value for this infringement at a level of over 250,000 uses, before Avnet commenced what was thought to be its and much second, now higher has but much out higher as level the of

infringement, infringement,

turned of

third the

level

infringement

than

first or the second. Plaintiff contends this fact pattern makes using his "fair market value" not applicable because it could not possibly include "what a willing buyer would have Frank been reasonably Corp. v. required to pay a willing Inc., seller." 772 F.2d

Music

Metro-Goldwyn-Mayer,

505, 512 (9th Cir. 1985).

Additonally, in this case, doing

so would provide Avnet bargain or discount rates for its large-scale allowed. ultimate infringement, and that cannot be

A willful infringement defendant "cannot expect to

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1

pay the same price in damages as it might have paid after freely negotiated bargaining, or there would be no reason scrupulously to obey the copyright law." Iowa State

University Research Foundation, Inc. v. ABC, Inc., 475 F. Supp. 78, 83 (S.D.N.Y. 1979), aff'd, 621 F.2d 57 (2d Cir. 1980). See also, Keca Music, Inc. v. Johnson, No. 5-78-74 (N.D. Tex. June 18, 1979) (awarding $ 21,000 in damages and fees, or three times the appropriate license fees). This is

why Plaintiff is using Experts, online stock agency quotes, and will use large-entity stock licensing representive

witnesses with at trial. Plaintiff contends Avnet reproduced one of Plaintiff's photographs in 55,000 2002 Annual Reports on the thick,

glossy, full-cover CEO message adjacent the thin first-page of its 10K, where the Annual Report spreads open. Avnet reproduced another one of Plaintiff's photographs in 60,000 2003 Annual Reports, on the thick, glossy, full-cover CEO message adjacent the thin first-page of its 10K, where the Annual Report spreads open. Avnet reproduced a couple of Plaintiff's photographs and distributed in over 50,000

circulated Avnet Global Perspective magazines. one of Plaintiff's photographs on its home

Avnet used page and it

received over 85,000 "hits"1 party user CRN in Magazine,

Avnet gave the image to thirdwhere it printed CRN Plaintiff's then

photographs

approximately

110,000

Magazines,

posted it on BOTH its CRN.com and ChannelWeb.com sites for

A hit like this makes Avnet liable for its making Plaintiff's photograph available for display, and is a reproduction in memory on the user's machine. A download is another reproduction onto media, i.e., a hard drive.
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an untold number of viewers/downloaders. And, Avnet allowed an untold, uncountable number of people download three of Plaintiff's photographs from its Press Room. Plaintiff

contends that there were as many as, near, or more than 259,000 individual and distinct uses of the copyrighted

photographs, in violation of Plaintiff's exclusive rights, as defined by 17 United States Code § 106(1), (2), (3), and (5). Because of this, Plaintiff contends the value of each and every infringing use by Defendants will tally to as much as $795,423.60 (including a $2,500 set-off for what Avnet paid). Plaintiff also contends that Avnet used his made his Roy Vallee photographs synonymous with Roy Vallee and Avnet, even if it was for one month. This $12-14 billion a year

company earns $1 billion per month. Plaintiff contends Avnet displayed Plaintiff's

photographs, and made them available for download on its home page, and secondary web pages knowing and inviting

visitors to avnet.com and sub-domains would display Avnet's web pages and Plaintiff's photographs on its home page, and secondary web pages in visitor's screens, also stored in video display memory, random access memory, and or/or fixed disk memory, thus each visitor infringing. and Avnet caused, to each

allowed,

benefited,

profited

contributed

visitor's infringement(s) while declining to exercise the right to stop or limit it. Avnet is responsible for this. "One who, with knowledge of the infringing activity,

induces, causes or materially contributes to the infringing conduct of another," may be held liable as a contributory

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infringer. Casella v. Morris, 820 F.2d 362, 365 (11th Cir. 1987). Avnet should therefore be held jointly and severally liable for each visitor's infringement and all visitors'

infringements. Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 261 (9th Cir. 1996). vicariously liable for all of In the alternative, Avnet is this. Metro-Goldwyn-Mayer

Studios, Inc. v. Grokster, LTD, 545 U. S. , 125 S. Ct. 2764 (2005). In order to collect indirect profits, plaintiff must establish a rebuttable presumption to a causal nexus to

enhanced reputation or goodwill from any or all of Avnet's global operations, under Polar Bear Productions, Inc. v.

Timex Corp., 384 F.3d 700 (9th Cir. 2004) and Brian Andreas v. Volkswagen of America, Inc., 336 F. 3d 789, 798 (8th Cir. 2003). For doing so "The standard is straightforward: a

copyright plaintiff is bound to no more and no less than its statutory obligation to demonstrate a causal nexus between the infringement and the profits sought." Polar Bear

Productions at 712, citing On Davis v. The Gap, Inc., 246 F.3d 152, 160 (2d Cir. 2001). This demonstration requires that "a copyright infringement plaintiff seeking to recover indirect profit damages "must proffer some evidence... [that] the infringement at least partially caused the profits that the infringer generated as a result of the infringement."" Polar Bear Productions at 711, citing Mackie v. Rieser, 296 F.3d 909, 911 (9th Cir. 2002). In most cases, the burden

then shifts to the Defendants to produce evidence during discovery showing "deductible expenses and the elements of

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profit attributable to factors other than the copyrighted work". Moreover, "The question of allocating an infringer's profits between the infringement and other factors, for

which the defendant infringer carries the burden, is "highly fact-specific," Brian Andreas v. Volkswagen of America,

Inc., 336 F.3d 789, 798 (8th Cir. 2003), citing Estate of Vane v. The Fair, Inc., 849 F.2d 186, 190 (5th Cir. 1988), cert. denied, 488 U.S. 1008, 102 L. Ed. 2d 783, 109 S. Ct. 792 (1989). Plaintiff contends his photographs were used by Avnet, Inc. in a public relations manner that made them inextricably tied to the goodwill of Avnet, Inc., and all of its profits for the time Avnet, Inc. used the photographs to promote Avnet, Inc. to "the public, the community,

employees, customers, etc." Individual Liability "The test for finding a corporate officer jointly and severally liable is with whether his the corporation officer 'has for the copyright right and

infringement

ability to supervise the infringing activity and also has a direct financial interest in such activities.'" Chi-Boy

Music v. Towne Tavern, Inc., 779 F. Supp. 537, 530 (N.D. Ala. 1991) (quoting Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963); Broad. Music, Inc. v. Blueberry Hill Family Rests., Inc., 899 F. Supp. 474, 481 (D. Nev. 1995) The Court has held all three infringers jointly liable for the willful infringement. Plaintiff contends that for an individual to be severally liable, the individual must:

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·

Be responsible for keeping track of Avnet's right to use the to photographs stop the at issue and have the See

authority

infringing

activity.

Playboy Enters. v. Starware Publ'g Corp., 900 F. Supp. 438, 440-41 (S.D. Fla. 1995) · Be an Avnet corporate officer and have a direct financial interest in such activities The Court has already found Defendant Allen Maag was responsible for keeping track of Avnet's right to use the photographs at issue, he had the authority to stop the

infringing activity, and was an Avnet corporate officer, a member of the Avnet Executive Committee. that discovery has born out that he Plaintiff contends had an applicable

financial interest in the activities.

In his deposition at

33:15-16, Defendant Allen Maag was paid thusly by Avnet: "Q. So the difference in the amount that you get paid depends on business? A. Yes." Maag was paid a salary, a bonus tied to company performance during the entire infringement term, and received stock options, a pension plan, and major health benefits. Plaintiff contends this makes Mr. Maag jointly and severally liable because he had a direct financial interest in the infringing activities, Avnet's bottom line. Plaintiff also contends that Mr. Vallee is jointly and severally liable. This is because Avnet transferred the

image to the GCIT, and once he was served with the instant suit, he became, as concurrent Avnet CEO and GCIT Board Member "the individual responsible for keeping track of" use of Plaintiff's photographs for Vallee's bio by the GCIT. As

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Avnet CEO and a Board Member of GCIT (as well as co-chair as of late 2005), and having attended GCIT meetings on

September 15, 2004, October 25, 2004, January 26, 2005, and May 18, 2005, "he had the authority to stop the infringing activity." Playboy Enters. v. Starware Publ'g Corp., 900 F. Supp. 438, 440-41 (S.D. Fla. 1995). He did not stop the infringing activity for at least 18 months after he received notice of suit for that very transfer and use. The amount of statutory damages Plaintiff contends

applies is $150,000 per each of the three Defendants, or $450,000. Alternatively, Plaintiff contends Defendants are jointly responsible breached for Coogan any contract damages. ""Client" company Since refers under to the the its

contract or

commissioning

party

named

above,

representatives, successors, assigns, agents and affiliates" (emphasis added); Plaintiff contends all active infringing Board Members breached the contract and are jointly and

severally liable for such contract damages. Plaintiff contends that the photographs in question,

licensed to Avnet, were pre-existing and all licensed as stock photography. Baker v. Urban Outfitters, Inc., 254

F. Supp. 2d 346 (S.D.N.Y. 2003) at 353-55, states:
"The record is also clear that the factors applicable to pricing licenses of stock photographs are different from the factors applicable to pricing commissioned works. The pricing of a stock photograph does not involve the[] same variables. The reproduction fee paid to the photographer for the use of a stock photograph is not based on a daily rate, and the ultimate license fee is not influenced by the same factors that influence a day rate. See Jim Pickerell & Cheryl Pickerell DiFrank, Negotiating Stock Prices (5th ed. 2001) at 200 ("the client is not hiring someone to go out and produce something that is only

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a dream in his or her mind, as is the case in assignment photography. With a stock image, the client knows, before negotiations begin, exactly what he or she is buying ... Whether the image was taken by an experienced professional or an amateur has no bearing on its value."). Rather, the pricing of stock photography is based upon the type of use, size of use and circulation. See id. at 210. The differences in pricing concepts for commissioned versus stock photographs simply represent the obvious differences in what is being purchased when one commissions a work versus what is being purchased when one licenses a stock photograph. This difference is explained as follows: Assignment photography is new photography, commissioned and paid for by a client. We photographers are selling our ability to create a photograph and also the rights for the client to reproduce that photograph for a very specific usage and time period. In stock photography we are selling (licensing) rights to reproduce an already existing photograph. Michael Heron & David MacTavish, Pricing Photography (rev. ed. 1997) at 7. In view of these crucial differences in both purpose and practice, [the expert's] experience with pricing specially commissioned photographic shoots fails to qualify her as an expert on the matter of valuing a stock photograph." Baker holds such testimony and evidence "... engaging in the sort of `apples and oranges' comparison that has been rejected in the past as irrelevant[.]" Id.; Johnson Elec. N. Am., Inc. v. Mabuchi Motor Am. Corp., 103 F. Supp. 2d 268, 281 (S.D.N.Y. 2000) (holding that the proposed expert's unfounded and irrelevant calculations "alone destroy the validity of his conclusions") Plaintiff contends that all testimony and/or evidence in this case related to assignment photography is irrelevant, and should be excluded, under Baker v. Urban Outfitters,

Inc., 254 F. Supp. 2d 346 (S.D.N.Y. 2003)
Plaintiff contends he may elect separate damages from the infringements in Count I and Count IV since both arose from a breach of contract, but infringement in Count IV relates solely to events that occurred before contract date, and the infringement in Count I relates to those events that were covered by the one-year license and were lost by the breach. He may therefore elect contract damages under Count

IV and copyright damages under the later in time Count I,

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vice

versa,

both,

or

neither.

See

Paramount

Pictures

Corporation v. Metro Program Network, Inc., 962 F.2d. 775 (9th Cir. 1992.) Defendants Contend Actual Damages Defendants believe Plaintiff's actual damages are in the range of $10,000 to $20,000. Damages in the range of

hundreds of thousands of dollars or millions of dollars are the kind of claims rejected by courts. See, e.g., On Davis

v. The Gap, 246 F.3d 152 (2nd Cir. 2001); Baker v. Urban Outfitters, Inc., 254 F. Supp. 2d 346 (S.D.N.Y. 2003). Avnet Profits Plaintiff has the initial burden to provide proof of Avnet's gross revenue causally related to the infringement. Polar Bear Productions, Inc. v. Timex Corp., 384 F.3d 700, 707, 711 (9th Cir. 2004); Mackie v. Riser, 296 F.3d 909, 914 (9th Cir. 2002). between There the is no evidence uses of and a causal Avnet's

relationship revenue.

infringing

Individual Liability To establish several liability of Mr. Maag and Mr. Vallee, Plaintiff must show that each of them had a direct financial interest in the infringing activities. See this Court's October

24, 2005 Order at page 12, line 17, et. seq. F. STIPULATIONS AND UNDISPUTED FACTS The parties stipulate to these facts: Pre-contract 1. Upside Magazine ("Upside") hired Plaintiff to shoot

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photographs of Avnet CEO Roy Vallee. 2. Upside published one of Plaintiff's photographs ("Photo

1") in an article about Mr. Vallee. 3. Avnet Chief Communications Officer Allen Maag saw the

photograph of Mr. Vallee in a draft or final version of Upside's July 2001 issue. 4. Mr. Maag contacted Upside's Editor-in-Chief Jerry

Borrell, and obtained permission from Upside to use the photo. 5. Photo 1 (Roy Vallee looking at the camera resting on

his left arm with a window behind his head) was obtained from two sources. 6. At the request of Jan Jurcy, on or about June 27, 2001,

an Avnet employee scanned Photo 1 from Upside Magazine and saved it as "roy4ink.jpg." 7. Avnet also received a physical copy of Photo 1 from

Upside, which Javed Badar scanned and saved as "roy_2.tif," on or about August 8, 2001. 8. 27, 2001 Photo 1 ("roy4ink.jpg." version) was used in the June issue of "AvnetInk Online," an e-mail sent to

approximately 8,000 employees, 100 stock analysts, Avnet's public relations firm, and a few journalists who follow the industry. The e-mail provided a link to an Avnet intranet site, where Photo 1 ("roy4ink.jpg.") was posted between approximately June 27, 2001 and February 2004. 9. Photo 2001 1 ("roy_2.tif" of version) Global was used in the

July/August

edition

Avnet

Perspective

Magazine

("AGP") (approximately 16,000 copies printed). 10. Photo 1 ("roy_2.tif" version) was used in the September

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2001 edition of AGP (approximately 16,000 copies printed). 11. Plaintiff contacted Avnet employee Sean Fanning, and

informed him that he had not been paid by Upside for the Roy Vallee photo shoot, and requested compensation from Avnet. 12. 13. Mr. Fanning suggested that Plaintiff contact Mr. Maag. Plaintiff contacted Mr. Maag and stated that he had

recently learned of Avnet's unauthorized use of his photograph. 14. Mr. Maag explained that he obtained the photograph from

Upside and used it with Upside's permission. 15. Plaintiff informed Mr. Maag that he held the copyright

and requested payment for the use of the photograph. 16. Plaintiff also stated that Upside had gone out of

business without paying his fee for the photo shoot and requested compensation from Avnet. 17. In a January 10, 2002 e-mail Plaintiff advised Mr. Maag

that the licensing fee for the two uses in AGP (if negotiated in advance) would have been $850 ($425 per use). 18. In the same e-mail, Plaintiff stated that he had never

been paid his $1,192.75 fee by Upside. 19. Plaintiff and Mr. Maag met on March 6, 2002 regarding

Upside's failure to pay Plaintiff, Avnet's use of the photograph obtained from Upside, and licensing of future rights to use

Plaintiff's photos. 20. Plaintiff and Mr. Maag agreed that Avnet would pay

$2,500 for the use of the photo obtained from Upside and future use of the photo and several others from the same photo shoot. 21. On April 10, 2002, Plaintiff e-mailed Coogan

Photographic Invoice No. 2002-1212 (the "Invoice") for $2,500 to

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Mr. Maag. 22. The Invoice one granted year, Avnet rights to use Plaintiff's use in

photographs

for

but

specifically

excluded

Avnet's Annual Report and transfer of rights to third parties. 23. Avnet paid Plaintiff $2,500 by check.

Post-Contract 24. Plaintiff provided Photo 2 (Roy Vallee leaning on his

right arm looking at the camera with several windows behind him) to Avnet pursuant to the Invoice. Photo 2 electronically as: a. b. c. d. e. f. g. h. i. 25. tif_300dpi_roy_vallee_board.tif vallee_small.tif vallee.jpg rv.jpg jpg_72dpi_roy_vallee_board.jpg thumbnails_roy_vallee_board.jpb valle_r.jpb vallee_r_small.jpg vallee_small_blur.tif Javad Badar scanned and stored

Photo 2 was used in: a. b. c. d. The July/August 2002 edition of AGP (approximately 16,000 copies printed). The September/October 2003 edition of AGP (approximately 16,000 copies printed). The November/December 2003 edition of AGP (approximately 16,000 copies printed). Avnet's 2003 Annual Report (printed and electronic versions). The electronic version was available on Avnet.com beginning on or about October 1, 2003 and modified in February or March 2004 to remove Plaintiff's photograph. Print versions of the 2003 Annual Report were available for distribution in approximately October 2003. Distribution of the printed version of the Annual Report containing Plaintiff's photograph continued until October 2005. Secondary page of Avnet's website. Photo 2 was posted on a secondary page (the Press Room) at Avnet.com between August 28, 2002 and February 25, 2004. The photograph was available for download by those accessing the website. Homepage of Avnet's website. Photo 2 was posted on the homepage at Avnet.com for a disputed period of time.

e.

f.

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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 26 27 28 26.

g.

h.

i.

j.

k. l.

m.

n. o.

The February 9-15, 2003 issue of an Avnet e-mail publication, "This Week at Avnet." The publication was sent to approximately 8,000 Avnet employees, including the Board of Directors. It may also have been sent to three outside contractors. The photo was archived on Avnet's intranet site between February 2003 and February 2005. The March 2-6, 2003 issue of This Week at Avnet. The publication was sent to approximately 8,000 Avnet employees, including the Board of Directors. It may also have been sent to three outside contractors. The photo was archived on Avnet's intranet site between February 2003 and February 2005. The January 25-31, 2004 issue of This Week at Avnet. The publication was sent to approximately 8,000 Avnet employees, including the Board of Directors. It may also have been sent to three outside contractors. The photo was archived on Avnet's intranet site between February 2003 and February 2005. CRN interview ­ Photo 2 was made available to CRN for its interview of Roy Vallee. CRN used Photo 2 on or about January 30, 2004 in electronic and printed versions of the interview. GCIT ("Governor's Council on Innovation and Technology") website. Photo 2 appeared on this website between April 2003 and December 2005. Supply-Chain Council used Photo 2 in a newsletter announcement and a seminar brochure, both available in printed form, and on Supply Chain's website. Morgan Stanley conference brochure. Photo 2 was used in a print program made available to the attendees of the "Annual Semi-Conductor and Systems Conference" in Dana Point, California on March 2, 2004. AZCentral.com ­ It is believed that Photo 2 was obtained by AZCentral.com from the "Press Room" on a date on or after August 28, 2002. ChannelWEB ­ It is believed that Photo 2 was obtained by Channel web from the "Press Room" on a date on or after August 28, 2002.

Plaintiff provided Photo 3 (Roy Vallee looking to his

left with his hands folded in the foreground) to Avnet pursuant to the Invoice. Javad Badar scanned and stored Photo 3

electronically as "vallee_r.tif" and "global_perspective_b.eps". 27. Photo 3 was used in: a. The September/October 2002 edition of AGP

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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 26 27 28 G.

b. c. d.

e.

(approximately 11,000 copies printed). The January/February 2003 edition of AGP (approximately 11,000 copies printed). The July/August 2003 edition of AGP (approximately 11,000 copies printed). Avnet's 2002 Annual Report (printed and electronic versions). The electronic version was available for on Avnet.com beginning on or about October 8, 2002 and was modified in February or March 2004 to remove Plaintiff's photograph. Print versions of the 2002 Annual Report were available for distribution in approximately October 2002. Distribution of the printed version of the Annual Report containing Plaintiff's photograph continued until October 2005. One 50th anniversary card was created on August 8, 2002 and presented to Mr. Vallee.

PLAINTIFF'S CONTENTIONS OF DISPUTED FACT Plaintiff Contends: 1. This Court has held that all three Defendants have

jointly, willfully infringed Plaintiff's copyright. 2. This Court has held that all three Defendants have

jointly breached Plaintiff's contract with Avnet, Inc. 3. During the time Defendants jointly, willfully infringed

Plaintiff's copyright, Defendant Allen Maag was paid thusly by Avnet: "Q. So the difference in the amount that you get paid depends on business? A. Yes." Maag deposition at 33:15-16.

Plaintiff contends Defendant Allen Maag's job is promoting Avnet and his did so infringing Plaintiff's copyright. 4. During the time Defendants jointly, willfully infringed

Plaintiff's copyright, Defendant Allen Maag was paid a salary, a bonus that was dependent on company performance, and he received at least a pension plan, stock options, health insurance, and a car allowance, all as part of his employment.

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5.

Defendant Roy Vallee received Notice of Suit filing via

counsel on or before May 3, 2004 (when his original waiver of service was filed). 6. The Complaint alleged in detail how the GCIT use of photograph of Mr. Vallee was allegedly both an

Plaintiff's

unauthorized,

infringing

distribution,

reproduction,

and/or

display of Plaintiff's Photograph. 7. Avnet, Inc. CEO, GCIT Board Member, and Defendant Roy

Vallee attended GCIT meetings on September 15, 2004, October 25, 2004, January 26, 2005, and May 18, 2005. 8. 9. This GCIT infringement continued through December 2005. The Defendant Roy Vallee had the power to stop the GCIT

infringement in December 2005. 10. The Defendant Roy Vallee had the power to stop the GCIT

infringement when he accepted service of the complaint in May 2004. 11. Defendant The photograph was transferred for use to the GCIT by Avnet, Inc., through Karen Zoppoth, assistant to

Defendant Roy Vallee at Avnet, Inc. at the time, on or near the April 7, 2003 transfer date. 12. When Mr. Vallee was appointed to the GCIT, Avnet sent a

This Week at Avnet email publication including at least one of Plaintiff's photographs to approximately 8,000 Avnet employees, including document, the Board of Directors, news. as an employee with relations

announcing

this

Clearly,

Plaintiff's

photograph accompanying the particular article, Avnet used one of Plaintiff's photographs to announce the appointment.

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13.

Avnet

admits

that

the

This

Week

at

Avnet

email

publication that announced that Mr. Vallee was appointed to the GCIT may also have been sent to three outside contractors. 14. The news of Mr. Vallee's appointment to the GCIT must transmitted reaching by the Avnet News and others far and wide,

been

ultimately

archives

for

Southbridge,

Massachusetts US-NEWS-WATCH.COM site, Copyright us-news-watch.com 2003, with a live link to the website with Plaintiff's photograph at http://www.gcit.az.gov/members/Roy_Vallee.html. See CGN 0123001232. It is still listed there now at http://us-news-

watch.com/Massachusetts/Southbridge.html. 15. 2004 When The Business Journal, Phoenix released its August print edition, Tech Industry Gets a Jump on '05

Legislative Session and discussed the GCIT and how "Roy Vallee, chairman and CEO of Avnet Inc. will lead the Brand/Image

Development and Awareness group", the instant lawsuit was five months in progress, and Plaintiff's photograph remained with Mr. Vallee's biography on

http://www.gcit.az.gov/members/Roy_Vallee.html. 16. When The Business Journal, Phoenix, posted the August

27, 2004 print edition article Tech Industry Gets a Jump on '05 Legislative Session on its website, and discussed the GCIT and how "Roy Vallee, chairman and CEO of Avnet Inc. will lead the Brand/Image photograph Development remained and with Awareness Mr. group", Plaintiff's on

Vallee's

biography

http://www.gcit.az.gov/members/Roy_Vallee.html. 17. When the Arizona Technology Council posted The Business

Journal, Phoenix article, dated September 3, 2004, Tech Industry

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Gets

a

Jump

on

'05

Legislative and

Session, the

on GCIT

its and

website how

at

www.aztechcouncil.org,

discussed

"Roy

Vallee, chairman and CEO of Avnet Inc. will lead the Brand/Image Development and Awareness group", Plaintiff's photograph remained with Mr. Vallee's biography on

http://www.gcit.az.gov/members/Roy_Vallee.html. 18. When the Arizona Department of Commerce released a

February 25, 2005 press release announcing CEO'S Vote Arizona Top Five for Business, and discussed how "the Governor's Council on Innovation and Technology (GCIT) established a marketing

committee that has been working since last July to target CEO's nationwide. Avnet Chair and CEO Roy Vallee Chairs the Committee and says the magazine survey validates the approach his group is taking", this lawsuit was less than one year old, and

Plaintiff's photograph remained with Mr. Vallee's biography on http://www.gcit.az.gov/members/Roy_Vallee.html. 19. When the State of Arizona Executive Office News Release

was released as a press release dated October 25, 2005 announcing Governor Names New Co-Chairs for Tech Council, and one those cochairs named was Defendant with Roy Vallee, Plaintiff's biography photograph on

remained

his

http://www.gcit.az.gov/members/Roy_Vallee.html. 20. For Tech When the article Arizona Governor Names New Co-Chairs Council was published by Government Technology at

http://www.govtech.net on November 8, 2005, and one those cochairs named was Defendant with Roy Vallee, Plaintiff's biography photograph on

remained

his

http://www.gcit.az.gov/members/Roy_Vallee.html.

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21.

According

to

Alexa.com,

the

GCIT

website

at

http://www.gcit.az.gov has a reach of 10,000 visitors a day. 22. All during the time Avnet, Inc. allowed Plaintiff's

Photographs to be displayed on Avnet's web pages, those pages containing Plaintiff's Photographs were automatically copied into the memory of the user's computer where they were displayed, estimated from Avnet's log files of files it claims were used its websites at over 200,000 times by at least 125,000 users. 23. All during be the time Avnet, from Inc. Avnet's allowed web were Plaintiff's those in

Photographs Reports

to

downloaded Plaintiff's

pages,

containing

Photographs

reproduced

90,000 copies. 24. Avnet allowed an untold number of users to download

multiple derivative copies of Plaintiff's Photographs from its www.avnet.com website link to its Press Room page. 25. Defendant Avnet, Inc. made 55,000 copies of its

infringing printed 2002 Annual Report. 26. Avnet distributed most of those 55,000 copies of its

infringing printed 2002 Annual Report to shareholders, investors and others. 27. Avnet distributed some of those 55,000 copies of its

infringing printed 2002 Annual Report as marketing collateral. 28. Avnet's use of Plaintiff's photograph in its 2002

Annual Report was a breach of the April 9, 2002 contract. 29. Defendant Avnet, Inc. made 60,000 copies of its

infringing printed 2003 Annual Report.

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30.

Avnet distributed most of those 60,000 copies of its

infringing printed 2003 Annual Report to shareholders, investors and others. 31. Avnet distributed some of those 60,000 copies of its

infringing printed 2003 Annual Report as marketing collateral. 32. By the time Avnet used Plaintiff's photograph in its

2003 Annual Report, it had already breached the April 9, 2002 contract. 33. Even when the instant lawsuit was in progress nineteen

months, and the Coogan contract attached to the complaint and the amended complaint both mentioned that the 2002 and 2003 Avnet Annual Reports could not include any of Plaintiff's photographs, Avnet distributed both infringing copies of printed 2002 and 2003 Annual Reports until October 2005. 34. At or nearly four months after Avnet, Inc.'s counsel

represented to the Court "Avnet used the photographs in its 2002 and 2003 Annual Reports and it distributed the photographs to third parties in violation of the terms contained on the Invoice. ... When Avnet learned that it had infringed on plaintiffs

copyright in the photographs, it immediately discontinued its use and distribution of the photographs", Avnet distributed both

infringing copies of printed 2002 and 2003 Annual Reports until October 2005. 35. At or nearly four months after Defendant Avnet, Inc.

corporate officer and individual Defendant Allen Maag stated in a sworn statement "Upon learning that Avnet had violated plaintiffs copyright in the photographs, I immediately ordered that all use and distribution of the photographs be stopped immediately",

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Plaintiff learned and had to report to defense counsel that, Avnet distributed infringing copies of printed 2002 and 2003

Annual Reports until October 2005. 36. With respect to one of Plaintiff's Photographs of Roy

Vallee Photo 1, Avnet, Inc. reproduced it directly from Upside Magazine by scanning into a file named roy4ink.jpg. 37. an With respect to Photo 1, Avnet, Inc. distributed it in Avnetink Photographs Online to newsletter well over with of one of

infringing

Plaintiff's

8,100

persons

((approximately 8,000 employees, approximately 100 analysts who follow Avnet's stock, to an unidentified number of persons at Avnet's public relations firm, and to another unidentified number of (a few) journalists who follow the industry)). 38. The Avnetink Online newsletter included a link to a PDF

copy of the July 2001 Upside Magazine article The Evolution of Distribution photograph. 39. The reproduction of Plaintiff's photograph into the starting it with Plaintiff's 2/3 page-size

file roy4ink.jpg and the distribution of Plaintiff's photograph in the Avnetink by the into Online Coogan the newsletter, contract. Avnetink were The Online not included of the was in or

covered

merging

file the

roy4ink.jpg

newsletter

preparation of a derivative work, with Plaintiff's photograph. 40. The scanned file roy4ink.jpg shows bleed-through lines

from one article in the July 2001 issue of Upside Magazine, with story text on page 47, while the actual photograph of Roy Vallee accompanying another article that was scanned, appeared on page 48.

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41.

The scan of the Upside Magazine article The Evolution starting it with Plaintiff's 2/3 page-size

Distribution

photograph to link from the Avnetink Online newsletter, were not included in or covered by the Coogan contract. 42. With respect to one of Plaintiff's Photographs of Roy

Vallee (looking at the camera resting on his left arm with a window behind his head ­ Photo 1) Avnet, Inc. used another copy of one of Plaintiff's Photographs in a file named roy-2.tif, in 16,000 copies each of the July/August 2001 edition of Avnet

Global Perspective ("AGP"), created on August 10, 2001, and the September 2001 edition of AGP, created on September 19, 2001. 43. To make the file roy-2.tif, Avnet, Inc. reproduced by

scanning a copy of one of Plaintiff's copyrighted photographs (AVN1095) on or about August 8, 2001. 44. AVN1095 was an unauthorized copy of Plaintiff's

Photograph transferred without authority by now-defunct Upside Magazine. 45. Avnet's reproduction of AVN1095 was not covered by the

Coogan contract. 46. The use of Plaintiff's photograph in two AGP issues

being reproduced and distributed in 2001 were covered by the Coogan contract, until the contract was ruled breached. 47. Plaintiff provided Avnet with electronic versions of

Photos 1, Photo 2, and Photo 3 to Avnet by email before the contract was paid. Many uses of these photographs came from

these electronic versions, and not scans.

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48. photograph

The

file to

roy-2.tif make

is

another and

rendition therefore

of

the

copied

roy4ink.jpg,

another

derivative thereof. 49. Plaintiff provided Avnet with electronic versions of

Photos 1, Photo 2, and Photo 3 to Avnet by email before the contract was paid. Many uses of these photographs came from

these electronic versions, and not scans. 50. With respect to Photo 2, Avnet copied, created, made

derivatives of, and stored in files, (displayed in electronic and printed copies, and in some cases, distributed) named · tif_300dpi_roy_vallee_board.tif · vallee_small.tif · vallee.jpg · rv.jpg · jpg-72dpi_roy_vallee_board.jpg · vallee_r.jpg · thumbnails_roy_vallee_board.jpg · vallee_r_small.jpg · vallee_small_blur.tif · roy_vallee_board_big.jpg · roy_vallee_board.tif · vallee_r_1.eps · vallee_office_table.jpg 51. Third-party users used files named · 1081D_vallee.gif · roy_vallee_board3.jpg 52. Photo 2 was reproduced and distributed in approximately

16,000 copies of the AGP July/August 2002 edition. 53. The copy of Photo 2 used in the AGP July/August 2002

edition was on page three, centered, accompanying the Message from the CEO column. 54. The copy of Photo 2 used in the AGP July/August 2002

edition was more cropped than the images Plaintiff provided Avnet in 2002. 55. The copy of Photo 2 used in the AGP July/August 2002

edition was a first derivative.

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56.

Another copy of Photo 2 was reproduced and distributed

in approximately 11,000 copies of the AGP September/October 2003 edition. 57. The copy of Photo 2 used in the AGP September/October

2003 was on page three, right-margin, accompanying the Message from the CEO column. 58. The copy of Photo 2 in the AGP September/October 2003

edition was more cropped than the copy of Plaintiff's Photograph in the July/August 2002 edition. 59. The copy of Photo 2 in the AGP September/October 2003

edition was a second derivative of Photo 2. 60. Another copy of Photo 2 was reproduced and distributed

in approximately 11,000 copies of the AGP November/December 2003 edition. 61. The copy of Photo 2 in the AGP November/December 2003

was on page three, centered, accompanying the Message from the CEO column. 62. The copy of Photo 2 in the AGP November/December 2003

edition was more cropped than the AGP July/August 2002 edition or in the AGP September/October 2003 edition. 63. The copy of Photo 2 in the AGP November/December 2003

edition was fourth derivative of Photo 2. 64. Another copy of Photo 2 was reproduced and distributed

in the 2003 Annual Report in printed and electronic copies of the 2003 Annual Report. The electronic version was available for

viewing, downloading, and printing from Avnet.com beginning on or about October 1, 2003 and continued through March 2004. 55,000

copies of the Print 2003 Annual Report were printed and then many

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copies were available for distribution in approximately October 2003, and the distribution of this version continued until

October 2005. 65. The copy of Photo 2 reproduced and distributed in the

2003 Annual Report was less cropped than Photo 2 as it appeared in the AGP July/August 2002 edition, the AGP September/October 2003 edition, or the AGP November/December 2003 edition. 66. The copy of Photo 2 reproduced and distributed in the

2003 Annual Report was a composite image; it consisted of a clear image of Photo 2 superimposed over a blurred image of Photo 2. 67. 68. 2003 This composite was still another derivative. The copy of Photo 2 reproduced and distributed in the Report was a fifth derivative of Plaintiff's

Annual

Photograph. 69. Avnet.com 70. The copy of Photo 2 reproduced and displayed on A copy of Photo 2 was reproduced and displayed on

Avnet.com was downloadable. 71. A copy of Photo 2 was reproduced and displayed on

secondary pages of Avnet.com. 72. The secondary pages of Avnet.com include but are not

limited to the Board of Directors pages of Avnet.com. 73. The secondary pages of Avnet.com include but are not

limited to the Board of Directors pages of Avnet.de. 74. The secondary pages of Avnet.com include but are not

limited to the Board of Directors pages of ir.Avnet.com. 75. A copy of Photo 2 was reproduced and displayed on Mr.

Vallee's biography page on Avnet.com

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76.

A copy of Photo 2 was reproduced and displayed on Mr.

Vallee's biography page on Avnet.de 77. A copy of Photo 2 was reproduced and displayed on Mr.

Vallee's biography page on ir.Avnet.com 78. A copy of Photo 2 was reproduced and displayed on

Avnet.tv/cnnfn. 79. A copy of Photo 2 was reproduced and displayed on

Avnet.tv/corporate/webseminars 80. secondary A copy of Photo 2 was reproduced pages and displayed on as

photograph

such

http://www.avnet.com/img_shared/sta/df3df3usa/vallee_r_small.jpg. 81. displayed A copy on of Plaintiff's Photograph was reproduced such and as

secondary

photograph

pages

http://www.avnet.com/img_shared/sta/df3df3usa/roy_vallee_board.jp g. 82. displayed A copy on of Plaintiff's Photograph was reproduced such and as

secondary

photograph

pages

http://www.avnet.de/img_shared/sta/df3df3usa/roy_vallee_board.jpg 83. displayed A copy on of Plaintiff's Photograph was reproduced such and as

secondary

photograph

pages

http://www.ir.avnet.com/img_shared/sta/df3df3usa/roy_vallee_board .jpg 84. displayed A copy on of Plaintiff's Photograph was reproduced such and as

secondary

photograph

pages

http://www.avnet.com/img_shared/sta/df3df3usa/roy_vallee_board_bi g.jpg. 85. displayed A copy on of Plaintiff's Photograph was reproduced such and as

secondary

photograph

pages

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http://www.avnet.de/img_shared/sta/df3df3usa/roy_vallee_board_big .jpg 86. displayed A copy on of Plaintiff's Photograph was reproduced such and as

secondary

photograph

pages

http://www.ir.avnet.com/img_shared/sta/df3df3usa/roy_vallee_board _big.jpg 87. Three versions of Plaintiff's Photograph(s) was

reproduced and displayed on Avnet's Press Room. 88. Three versions of Plaintiff's Photograph(s) were

downloadable from Avnet's Press Room. 89. One of the three copies of Plaintiff's Photograph on

Avnet's Press Room was a tif file. 90. One of the three copies of Plaintiff's Photograph on

Avnet's Press Room was a JPEG file. 91. Two of the three copies of Plaintiff's Photograph on

Avnet's Press Room were JPEG files. 92. An electronic copy of Plaintiff's Photograph (the file

rv.jpg) was used in three issues of an e-mail publication called "This Week at Avnet", sent to approximately 8,000 Avnet

employees, including the Board of Directors. Avnet admits it may also have been sent to three outside contractors. The rv.jpg image remained from February 2003 through February 2005 as an archive on Avnet's intranet site. The image was used in an issue dated February 9 through 15, 2003 accompanying an article Vallee Named to Arizona Governor's Council on Innovation and Technology, in an issue for the week of March 2 through March 6, 2003

accompanying an article Vallee Appointed to Synopsys Board of Directors, and an issue for the week of January 25 through

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January 31, 2004 accompanying a front page article Vallee to Chair GTDC Industry, while another image, named

townhall_fy04q2.tif, obviously a composite image including the rv.jpg image and therefore a derivative thereof, appeared on page two of this email, accompanying an article Q2 FY04 Town Hall Broadcast February 4, 2004. 93. The electronic copies of Plaintiff's Photograph (the

file rv.jpg) was used in differing sizes in each of three issues of an e-mail publication called "This Week at Avnet". 94. The rv.jpg image that remained from February 2003

through February 2005 as an archive on Avnet's intranet site, allowed access to it and access to use it by any Avnet personnel having access to that intranet site. 95. Three versions of this photograph were placed in the

"Press Room" and available for download by users accessing the website. These images were placed in the "Press Room" at the end of August 2002 and removed from the "Press Room" in February 2004. 96. While three versions of this photograph were placed in

the Avnet "Press Room", they were downloadable. 97. While three versions of this photograph were placed in

the Avnet "Press Room", they were downloaded an untold number of times. 98. While three versions of this photograph were placed in

the Avnet "Press Room", they were downloaded by unknown thirdparties. 99. A Coogan Photograph was used by CRN Magazine, a

division of CMP Publications, LLC.

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100. Avnet personnel transferred an electronic copy of the Coogan photograph in a file named vallee_office_table.jpg in an email to CRN personnel, Distribution Editor, Scott Campbell. 101. CRN published and displayed a web-based article on Roy Vallee and Avnet with this image being the only image of Roy Vallee accompanying the article to in the file users 1081d_vallee.gif at

available

www.crn.com/Sections/Interview/interview.asp?ArticleID=47494. 102. CRN also published a larger, differently cropped

version of this Coogan image in the February 2, 2004 issue of CRN Magazine, distributing resellers, approximately distributors" 110,000 for its copies to "To of IT Roy

executives,

interview

Vallee for public relations purposes. 103. CRN Magazine then allowed ChannelWEB, another division of CMP Publications, LLC to use the Coogan Photograph, and it appeared in a ChannelWEB web-based article reporting on the CRN article above in a publication entitled CRN Interviews Avnet's Roy Vallee, formerly available at

www.channelweb.com/sections/Newscenters/Article.asp?newscenterID= 47494. 104. The "This Week at Avnet" e-mail publication issue for the week of January 25 through January 31, 2004 with its front page article Vallee to Chair GTDC Industry, was published just as Mr. Vallee's interview at

www.crn.com/Sections/Interview/interview.asp?ArticleID=47494 appeared on the web. 105. A Coogan Photograph was used by GCIT (the website known as the "Governor's Council on Innovation and Technology")

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106. Karen Zoppoth of Avnet, Inc., assistant to Roy Vallee an email with the web page to link Sandra

www.avnet.com/pressroom/bios/officers/vallee_r.html

Watson of the GCIT on April 7, 2003 at 9:06 AM with a weblink. 107. This weblink appears to have linked to the then-present on Avnet.com bio of Mr. Vallee. Since Mr. Vallee's bio on that day contained an electronic copy of Plaintiff's Photograph and the same photograph ultimately appeared on Mr. Vallee bio on the GCIT website, the parties believe that a photograph was sent to the GCIT by Avnet or the GCIT obtained the photograph from the Avnet website soon thereafter. 108. The infringing Coogan photograph was posted in

connection with Mr. Vallee's bio on the GCIT site and the parties stipulate this started in April 2003. Mr. Vallee's bio with a copy of Plaintiff's Photograph remained on the GCIT site until December 2005. 109. A copy of Plaintiff's Photograph remained on the GCIT until December 2005 even though this suit was brought

against Avnet, Inc. and Roy Vallee individua