Mestaz Law Newsletter – June 2023

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The Undeniable Importance of Videotaped Depositions and Important Copyright Case Updates

In this edition of our newsletter, we delve into how video depositions can make a huge difference in court, as well as updates on copyright cases of note.

We hope you enjoy reading this, and if you have any subjects you’d like to have featured in our future newsletters, let us know!

The Critical Importance of Videotaping Depositions

By Dan Mestaz

Pound for pound, deposition testimony is the most important part of discovery—perhaps as important as the trial itself—because, at trial, the jury will learn what the witnesses have already testified to on the key issues.

Importance of videotaping dispositions

By the time of trial, the parties are, to a large degree, hamstrung by those depositions—tethered to the words spoken months before. Thus, as any litigator can tell you, depositions can be triumphant and champagne worthy . . . or gut wrenching when, say, your client or someone who “seemed” like a good witness falls apart or says damaging things for the first time despite your best efforts to prepare them for deposition.

Because depositions are so critical, it is also essential to videotape them, despite the extra cost. In short, if it is worth taking a deposition, it is worth the extra money to videotape it.

Depositions as Trial—Not Just Discovery

I believe that the best trial lawyers see depositions as akin to the trial itself, rather than simply a tool to learn or “discover” what witnesses will say at trial. As one of my favorite instructors, deposition guru Robert Musante, puts it:

“If the adverse deposition is done right, and the trial cross-examination of the deponent-become-trial-witness is done right, then, at its core, the trial cross-examination is a re-enactment of the best of the deposition testimony. If the deposition is done right, then the booklet produced by the court reporter can properly be called a transcript.”

In other words, the better you do at deposition, the better the testimony in the transcript, the better off you are at trial. Indeed, at trial, that witness must agree with what he already said or he will look like a liar because the lawyer will smack him with contradictory deposition testimony in full view of judge and jury. That is known as “impeachment” and it is one of the most effective tools in the trial lawyer’s arsenal.

It is even more effective, however, to smack the witness with a clip of their videotaped deposition, rather than the written excerpts from the transcript that must be read aloud in the courtroom.

The Benefits of Video

Virtually all jurisdictions, including Arizona, allow litigators to videotape their depositions. True, it is not cheap. Adding video to already significant court reporter and transcript costs, will add at least $500 to each deposition—a cost that increases with the length of the session. But in my experience it is absolutely essential.

Impeachment is the most common use of deposition transcripts. The witness, for example, testifies at trial that, say, he never received a key document—but in deposition testified that, in fact, he got it by email, printed it out, and then read it. Without video, the lawyer, after a few setup questions, will embarrass the witness by reading aloud from his contradictory deposition admissions. But if you videotaped the deposition, and have the clip cued up and ready to go, it is much more impactful to simply play the few seconds or so of the witness testifying, in deposition, to the exact opposite thing he is saying now.

And as any psychologist can tell you, communication is much more than words. Thus, without videotape, you lose body language, tone, emphasis, nervousness, facial expressions, long uncomfortable pauses, and the occasional good ol’ fashioned deer-in-the-headlights panic in response to a probing question. Words on a page are no substitute for the real thing. Consider some examples:

  • The executive who testifies that he “read” the contract. If he testified that he read the contract, looking confident and calm while emphasizing the word “read,” i.e, “I read the contract,” video of that testimony (rather than the written words without the emphasis) is a more persuasive picture that he indeed read the contract.
  • Assume that the timing of a two-person meeting, where important information was discussed, is critical to a fraud claim, but only the witness is available to testify about it. Assume further that the witness does not want to admit the date and time suggested by the cross-examiner. If the witness responds with a long pause, and shifts around in his seat, and sighs loudly, and then closes his eyes, before saying with great resignation and defeat, that it is “possible” that the meeting took place at that time—imagine the superior impact of that video compared to only the written words on a page that can be explained away with, “well, I said it was possible, but it was not likely.” With video, the damage is done.

The examples of how videotaped depositions shown in court can help a case are endless.

Technology can make videotaped depositions even more effective. I use proprietary technology—the Chron—in combination with state-of-the-art trial presentation software to make bar-coded videotape clips that can be played at a moment’s notice with just the swipe of a bar code reader. Once the witness contradicts himself, I need only wand the contradictory testimony and the video of the witness, with their own voice and words, plays on the screen. The impact is undeniable. It is far more effective than impeaching a witness with words on a page.

In conjunction with the court reporter, I also ensure that the videotaped deposition testimony is synced with the transcript. In other words, as the video plays, the audio syncs with the written transcript—thereby creating a rolling subtitle—so the judge and jury can follow along. Similarly, if the witness is testifying about a document, I create a split screen, with video testimony on one side, the document on the other, and the synced deposition testimony below. Particularly in commercial disputes, which usually involve a lot of data and documents, synced videotaped deposition testimony is critical for the jury to understand, in real time, the point you are trying to make. And really, that is the only chance you will have to do so, because if they do not get the point when it is being made, they will not magically “get it” later.

Videotaping Depositions is Particularly Important in Arizona

The general rule in most jurisdictions is that depositions can be used to impeach a testifying trial witness (i.e., showing that he or she said contradictory things in deposition) or to simply introduce the deposition testimony into evidence if the witness is unavailable to testify (e.g., if the witness lives in another state and cannot be subpoenaed for trial).

Arizona is different. In Arizona, parties can use deposition testimony at trial even if the witness is testifying or is available to testify, and irrespective of impeachment. Here is an example. Assume I got great deposition testimony from a witness, but at trial, that witness has been coached up and is prepared. I am free to stand up, ask a few basic questions, and then simply start playing for the jury damaging clips of his videotaped deposition testimony. I do not have to ask him questions to set up impeachment, unless, of course, I want to, which I sometimes do. Thus, if I have done my depositions well, trial will include many damaging deposition clips that I can play when I want, whether for impeachment or not. Sometimes, a few minutes of deposition testimony is so good that there is no substitute to simply playing it for a jury. Other times, it may be a few seconds of impeachment that I can play if the witness denies what he already admitted.

Without video, however, I would be left with only the written transcript. I can still get it into evidence, but only by having it read—either myself, by the witness, or, for longer excerpts, by an assistant who simply reads the transcript out loud. If that sounds boring, well, it is! I have seen jurors struggle to keep their eyes open when a paralegal from the firm reads them deposition testimony, no matter how important it is. But when they see the witness testifying on video regarding an important point, they perk up and pay attention. The impact is undeniable.

Videotaped deposition testimony is a game changer. It is absolutely essential to trial work.

Arizona Copyright Update – June 2023

By Matthew Hersh

arizona state flagGreetings from the world of copyright where we’ve had an active quarter, much of which has been covered in either our online blog or in the writings of Matt Hersh, our counsel. For example, we covered here the landmark decision by the Supreme Court in the Warhol v. Goldsmith case. (A case in which Matt filed a friend-of-the-court brief.)

Matt also provided coverage in the IP Law Daily of this important Ninth Circuit decision about the impact of group registration with the Copyright Office. Matt’s other publications in the IP Law Daily are linked below.

In the meantime, here’s an up-close look at other copyright cases that have been percolating in our local federal district court and beyond since our last update.

Featured Arizona Cases

Photography by Frank Diaz LLC v. Friends of David Schweikert

Here’s an interesting case with implications for defamation, copyright, and—of course—politics. David Schweikert, the Republican Congressman from Arizona’s 6th congressional district, won the Republican primary in 2021 for the newly drawn 1st District, which covers parts of Maricopa County along with the Salt River and Fort McDowell Yavapai National tribal reservations. But that primary came with its share of controversy, in part because Schweikert ran a campaign against primary opponent Elijah Norton that was openly homophobic. Among other things, his campaign circulated a photo of Norton with another man with the caption: “Elijah Norton isn’t being straight with you.”

The campaign’s use of that photo raised the ire of Frank Diaz, a photographer based in Seattle who also does business in Arizona through his company, Photography by Frank Diaz.  Through his company, Diaz alleged that he took the photograph during a 2018 Memorial Day event at Charlie’s, a noted gay bar in Phoenix. Without his permission, Diaz alleges, the Schweikert campaign copied and distributed the photograph in campaign ads, flyers, and assorted other media. The complaint alleges that in doing so, the campaign infringed on his exclusive rights regarding the photograph.

The Schweikert campaign has just filed a motion to dismiss that defends on grounds of fair use. It’s likely to lead to a pretty interesting round of briefing, especially in light of the recent Warhol opinion (see above). Political campaigns of all stripes are known to purloin music

and photographs from time to time. When musicians call them out on it, they tend to prevail. For example, Eddy Grant recently won a case against the Trump campaign for using his 1980’s classic “Electric Avenue.” Grant v. Trump, 563 F. Supp. 3d 278 (S.D.N.Y. 2021). Don Henley also famously won a lawsuit against a Republican Senate candidate back in 2010. Henley v. DeVore, 733 F. Supp. 2d 1144, 1148 (C.D. Cal. 2010). But photographers have tended to have worse luck. For example, in both Galvin v. Illinois Republican Party, 130 F. Supp. 3d 1187 (N.D. Ill. 2015) and Peterman v. Republican Nat’l Comm., 369 F. Supp. 3d 1053 (D. Mont. 2019), courts found that it was fair use for a candidate to use a third party’s photograph, without permission in order to portray his opponent in a negative light.

Our guess is that the photographer will eventually get the best of the argument, especially in light of the Supreme Court’s recent narrowing of the fair use doctrine in the Warhol case. But either way this will be an important one to watch.

Adams v. Netflix

This one has some decidedly wild facts. Some readers might remember the 2021 Netflix miniseries that told the story of Robert Handy-Freegard, aka The Puppet Master. Freegard was a con man who, posing as an MI5 agent in Europe during the 1990s and early 2000s, manipulated his victims into giving him their money. His only American victim was Kim Adams, a child psychologist, when she met him after she moved to London. Her stepfather had recently won millions of dollars in the lottery, so she was a natural target. Eventually, Freegard was arrested in 2003—with the help of Adams and her family—and convicted in 2005.

This lawsuit, just filed in May, lacks some of the intrigue of the underlying story, but will be worth following no less. The lawsuit was brought by John Adams, the natural father of Kim Adams. According to the complaint, one of the episodes of the Netflix series displays “prominently” a photo that he took of his daughter and Freeborn together at his home. As a result, the complaint asserts, Netflix infringed his copyright. (Now, as a side note, the complaint does not allege that Adams registered his copyright with the Copyright Office, which may be a challenge to the claim, at least until the registration is made. One to watch in any event.)

W Chappell Music Corporation v. Fonzi Trading LLC

Carly Simon has made an appearance in Phoenix, at least for judicial purposes. The famed songwriter and singer alleges that a local bar, Bleachers Sports Grill, performed three of her songs—including the classic You’re So Vain—without a license. The complaint is joined by music publisher Warner Chappell.

Other Arizona Cases

Barrett Financial Group LLC v. Source Capital Funding

This is a declaratory judgment action that seeks to thwart, among other things, potential copyright infringement actions as well as takedown notices under the Digital Millennium Copyright Act, or DMCA. The gist of the claim is that the California company has been targeting, through DMCA takedown notices and threats to sue, a series of websites run by a Gilbert, Arizona company that hosted allegedly infringing content. The Arizona company contends that it has no control over the websites as they are run by an employee of the company who is not a member or officer of the company nor has the authority to manage the websites on the company’s behalf.

Biltform Architecture Group v. Investment Development Management / Biltform Architecture Group v. HCW LLC

These are two cases brought more or less simultaneously by the Biltform Architecture Group, a Phoenix-based architectural firm. Each one targets a series of developers—some from Arizona, some from other states—who allegedly copied its architectural plans in building residential complexes in Maricopa County. The developers in each case have moved to dismiss, largely on the grounds that the architectural plans at issue were too generic to warrant protection. Briefing on one motion is still underway and in the other is complete.

Broadcast Music Incorporated v. Go Irish / Broadcast Music Incorporated v. Windsock

This is the kind of case that appears often on the copyright dockets. Broadcast Music Inc., one of the three main entities (ASCAP and SESAC are the others) that license bars and restaurants to play music, sued two bars in the Phoenix area for playing music without a license. Both cases ended in May—one with a default and the other with a settlement.

Dassault Systemes SolidWorks Corporation v. Orion Structure LLC

This was a lawsuit by SolidWorks, a Massachusetts-based corporation that creates computer-aided design software. Its complaint asserted that a Flagstaff-based single-member LLC called Orion Structure used its software without a license on more than 100 occasions. The lawsuit was voluntarily dismissed early this year, for unknown reasons.

Fornix Holdings LLC v. Unknown Party / Fornix Holdings v. Pepin / Fornix Holdings LLC v. Unknown Party / Fornix Holdings LLC v. Unknown Party

We’ve covered these four cases before in our March newsletter (see the entry “Fornix v. Everyone?”) It’s extensive litigation by an Arizona producer of porn movies against the individuals who have been infringing their works and the service providers that have allegedly contributed to their infringement. The case is likely to be on our dockets for a while, so we’ll let you know of any breaking developments.

Fowler v. T-Mobile

JaMarlin Fowler, a California resident and owner of a production company called Visual Fire Media, alleged that his ex-girlfriend stole his phone containing a wide range of his protected content—and that Sprint (now T-Mobile) should be on the hook because it helped her copy the contents of that phone over to a new one. (If nothing else, it was a creative argument.) T-Mobile came out on top in mediation—perhaps not surprisingly—and in February the court affirmed the award.

Grant Heilman Photography v. Meow Meow Media

Grant Heilman, a Pennsylvania-based stock photo company, sued Spadefoot Nursery, a Tucson vendor of “native plants, domestic edible crops, and botanical curiosities”, for allegedly using one of its photographs without permission to promote its business. The case is just getting underway.

New Parent World LLC v. True to Life Productions

My Baby Experts, a New Jersey company that offers online courses about parenting, sued Navajo County-based True to Life Productions. The New Jersey company alleges that the Arizona company purloined its videos, removed its copyright notices, created “infringing knockoff videos”, and then marketed those videos “in direct competition with My Baby Experts”. This lawsuit, too, is just getting underway.

Pearson v. Pearson

This was a short-lived family squabble—it was filed on May 5 and dismissed on May 19. Nathan Pearson, a Tulsa-based software and iInternet website designer, claimed that The Russian Store, a Chandler venture owned by Gary and Irene Pearson (they are husband and wife, but it’s unclear how they are related to Nathan) infringed his software code for their own website.

Rosen v. JCK Enterprises LLC

This is a complaint by Barry Rosen, a professional photographer and frequent litigator. The target of his complaint is Pristine Auction, a Phoenix-based sports memorabilia auction house. The photographer alleges that the auction house offered for sale signed prints of photos he had taken of Anna Kournikova and Jeri Ryan. The complaint was served at the end of April, but there does not appear to have been any other action on the case.

Sony Music Entertainment et al v. Trefuego

This was a lawsuit by Sony against Trefuego, an Arizona-based rapper (you can see his website here. In 2019, he independently released a song called “90mh” that became an instant viral hit (including over 10 million plays on YouTube alone). That song, Sony contended, blatantly sampled from a 1986 song called “Reflections”, released by Japanese composer Toshifumi Hinata. Sony dismissed the case in March, for unknown reasons.

Stokes v. Wileyman Enterprises LLC

California photographer Michael Stokes sued Kobalt, a downtown Phoenix gay bar, for using one of his photographs on its Facebook page. The suit was dismissed with prejudice shortly after its filing in April—and the photograph is now down from the page—so it appears that the parties reached a quick settlement.

Stross v. Yvette Craddock Designs LLC

Stross Stock, a Texas-based stock photography company, sued Tempe-based Yvette Craddock Designs for using one of its photos in promotional materials. The case was settled in February.

Toys by Daphne Incorporated et al v. Nan Ning Shi Ma Ke Technology Company Limited

A Phoenix company named Daphne’s Headcovers sued a Chinese company for allegedly infringing its popular golf headcover. But the company never managed to serve its Chinese adversary, so the case was voluntarily dismissed in April.

Vanderhoven v. Speer et al

This lawsuit arose out of a dispute between two members of Good with Grenades, a pop-punk group formed in 2002 in Phoenix. Johnny Vanderhoven, the band’s vocalist, sued Ryan Speer, the band’s guitarist, alleging that he uploaded some of their songs to Spotify and other sites but didn’t share the revenues. The complaint was settled in February.

VIP Products LLC v. Pet Krewe Incorporated, a Phoenix-based company that makes dog chew toys, sued a Louisiana company in December 2022 for alleged infringing one of its designs. The Phoenix company dropped its complaint shortly thereafter, for unknown reasons. (By the way, Arizona trademark watchers will recognize VIP Products—the parent company of—from another trademark case that recently made the news. In early June, the Supreme Court ruled against the company in a trademark infringement brought against it by Jack Daniels. We covered that case on our blog here.)

Wolf Designs LLC v. Five 18 Designs LLC

This is a dispute between two Phoenix-area companies that sell “vehicle wraps”, which are essentially large vinyl graphics or decals that customers can use to modify the look of automobiles. One of them, Wolf Designs, sued the other, Five18 Designs, for allegedly purloining some of its designs. The lawsuit, which has been on the docket for two years and originally asserted trademark violations as well as tortious interference, has now been stripped of all claims other than two copyright claims. The parties appear to now be in the early phases of discovery on those claims.

Wareka v. Scalpa

This is a lawsuit brought by Tamara Wareka, a California-based photographer. Based on a brief docket search, it appears that this is one of many infringement lawsuits that Ms. Wareka (who goes by her professional name, Tamara Williams) has filed in recent months in various districts. In this complaint, the photographer alleges that an Arizona cosmetics company, Scalpa, purloined one of her photographs for its Facebook page. As of this writing, the complaint has not yet been served, but the court has granted the photographer additional time to do so.

Other Cases Covered by Matt for The IP Law Journal This Quarter

N.D. Cal.: DISH Network wins on all counts against a South Asian internet broadcaster (Jun 16, 2023) – link to story here.

S.D. Fla.: How many ways can a banana be duct-taped to a wall? (Jun 13, 2023)—link to story here.

D. Utah: A ‘Rembrandt of Snow’ will have to prove ownership and artistry (Jun 12, 2023)—link to story here.

C.D. Cal.: Dua Lipa rises above a Florida band’s infringement claim (Jun 9, 2023)—link to story here.

D.N.J.: Are the answers derivative of the questions? A discovery dispute might provide a clue (Jun 7, 2023)—link to story here.

E.D.N.Y.: Court lacks power to alter Copyright Office records (Jun 6, 2023)—link to story here.

C.D. Cal.: No DMCA violation for logging into a database with credentials that have passed to someone else (May 25, 2023)—link to story here.

N.D. Cal. Another bid for class certification of a copyright claims goes down the ‘Tube’ (May 24, 2023)—link to story here.

S.D. Fla.: Notice and ‘take-down’ prevails over notice and ‘stay-down’ (May 19, 2023)—link to story here.

W.D. Tex.: $46 million jury verdict against Grande Communications is upheld (May 18, 2023)—link to story here.

E.D. Tex.: Another music industry case against an ISP goes forward (May 17, 2023)—link to story here.

11th Cir.: Statutory preemption does not necessarily allow removal in copyright actions (May 16, 2023)—link to story here.

S.D.N.Y.: An appropriation artist takes another hit over his Instagram series (May 15, 2023)—link to story here.

1st Cir.: Dismissal for failure to register is not a dismissal on the merits (May 12, 2023)—link to story here.

D. Mass.: Footwear complaint does not get beyond the starting line (May 11, 2023)—link to story here.

W.D. Wash.: A video game developer takes on an underage user (May 10, 2023)—link to story here.

11th Cir.: Borrowing of iPhone iOS for security research is covered by fair use (May 8, 2023)—link to story here.

D. Utah: Court serves up another narrow view of the display right (May 4, 2023)—link to story here.

Second Circuit pushes music publishers’ buttons in longstanding case over online music vault (May 3, 2023)—link to story here.

N.D. Cal.: In ISP lawsuit, unnamed Reddit commentators are protected by the First Amendment (May 2, 2023)—link to story here.

W.D. Wash.: The ability to withdraw a ‘carrot’ does not create the ‘stick’ of right to supervise (May 1, 2023)—link to story here.

E.D. Mich.: Bow-wow-wow-yippee-yo-yippie-yay: Estate of former George Clinton collaborator can celebrate-first round win (Apr 26, 2023)—link to story here.

S.D.N.Y.: A compilation of ‘trending’ pet photographs held to be fair use (Apr 25, 2023)—link to story here.

S.D. Fla.: Stolen scenes from an Italian restaurant might get chain owner in trouble (Apr 21, 2023)—link to story here.

E.D. Mo.: Missouri court has Zippo jurisdiction over Florida resident based on a single online sale (Apr 20, 2023)—link to story here.

E.D. Pa.: Lawsuit over hockey memorabilia is dismissed for a second time (Apr 18, 2023)—link to story here.

E.D. Wis.: One percent solution: A tiny amount of borrowed source code might be enough to constitute a derivative work (Apr 17, 2023)—link to story here.

D. Colo.: Not in my House: Legend of the Chicago sound is hit with infringement lawsuit (Apr 12, 2023)—link to story here.

E.D. Mich.: T-shirt company must pay attorney fees for infringement of artist’s designs (Apr 7, 2023)—link to story here.

Fed. Cir.: Software developers beware: General allegations of ‘creativity’ not enough to protect non-literal elements of code (Apr 6, 2023)—link to story here.

W.D. Wisc.: No cause of action against a service provider under the DMCA (Apr 5, 2023)—link to story here.

7th Cir.: Group registrants, beware: Use of a convenient Copyright Office procedure might limit the scope of statutory damages (Apr 3, 2023)—link to story here.

N.D. Ill.: French connection: aspiring producer can’t bridge the gaps in lawsuit against popular rapper (Mar 31, 2023)—link to story here.

C.D. Cal.: If a photograph imitates reality, and reality is wearing a pin-up girl design on her trousers, whose art wins? (Mar 29, 2023)—link to story here.

S.D.N.Y.: Parts greater than the whole: Non-profit famous for archiving the entire internet cannot lend out copyrighted books (Mar 27, 2023)—link to story here.

S.D. Fla.: Defendant’s name is Maximus, but Plaintiff has her revenge (Mar 24, 2023)—link to story here.

S.D.N.Y.: Damon Dash loses yet another round in the courts (Mar 23, 2023)—link to story here.

S.D.N.Y.: Tip your server: Dow Jones has domestic cloud servers to thank for its lawsuit against a Chinese company (Mar 20, 2023)—link to story here.

Depositions Make a Huge Difference… Unless You Present them in the Wrong Way

Over the past few years, we’ve been able to view some very high-profile cases involving celebrities. Depositions were a big part of these cases, but sometimes they were used in a very ineffective way. Here is one example.

In 2022’s Johnny Depp v. Amber Heard defamation case, we find many good examples of how not to use videotaped deposition testimony. The attorneys for both sides chose to submit into evidence some of the witnesses presented via video in its entirety.

Court Stenographer Judy Bellinger revealed in an interview with Law & Crime Network that she personally saw some jurors dozing off while lengthy video depositions were shown during court proceedings. She continued and said, “It was tough. There was a lot of video deposition and they’d just sit there and all of the sudden I’d see their heads drop.” While she did share that most of the jury was paying close attention and listening closely, apparently some of the very lengthy video depositions played made them ready for naptime. We understand this, and prepare ahead of time specifically cued segments of depositions and play them using The Chron.

As we stated earlier, a paralegal reading deposition testimony can be boring enough to put jurors to sleep, but short video clips – especially those cued up to the exact relevant point – can made a jury pay close attention… and not have their heads bobbing in an attempt to stay awake.

Mestaz Law is a commercial litigation firm serving businesses, business owners, business executives, and entrepreneurs.

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