DRK Photo v McGraw-Hill Cos Exhibits

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DRK Photo v. McGraw-Hil l Global Educational Holdings, LLC

and McGraw-Hil l School Educational H oldings, LLC,Case No. 3:12-CV-08093 (PGR)

INDEX OF EXHIBITS

to

DECLARATION OF MICHAEL BEYLKIN IN SUPPORT OF

DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Ex. Description

MB1 Excerpts of Deposition of Daniel Krasemann (June 7, 2012), taken in John

Wiley & Sons, Inc. v. DRK Photo (Wiley), No. 11 CIV. 5454 KPF (S.D.N.Y.)

(Doc. No. 54-3, filed May 23, 2013)

MB2 Excerpts of Deposition of Daniel Krasemann (Dec. 10, 2008), taken in Wood

v. Houghton Mifflin Harcourt Publishing , No. 07 CV 1516-DME-BNB (D.

Colo.)

MB3 Exemplars of Non-Exclusive Representation Agreements between DRK and

Photographers

MB4 Exemplars of “Exclusive” Representation Agreements between DRK and

Photographers

MB5

DRK’s Response to MHE’s First Set of Requests for Admission (Sept. 26,

2013)

MB6 Listing of Copyright Litigations Filed by Harmon & Seidman as of Jan. 21,

2014

MB7 Executed “Copyright Assignment, Registration, and Accrued Causes of

Action Agreement” Forms

MB8 Emails between DRK and Photographers (transmitting Executed “Copyright

Assignment, Registration, and Accrued Causes of Action Agreement” forms)

MB9 “Copyright Assignment, Registration, and Accrued Causes of Action

Agreement” Form (blank)

MB10 Emails from Dan Krasemann (DRK) to John Cancalosi (Nov. 18, 2008) &

from Dan Krasemann to David Northcott (Nov. 18, 2008)

Case 3:12-cv-08093-PGR Document 99-1 Filed 03/24/14 Page 1 of 177


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Ex. Description

MB11 Email from Dan Krasemann of DRK to Renee Bish on behalf of Pete Oxford

(June 30, 2008)

MB12

Email from Dan Krasemann of DRK to Thomas Dressler (July 9, 2008)

MB13 Email from Dan Krasemann of DRK to Jacqueline Gurr on behalf of Bob

Gurr (June 30, 2008)

MB14 Email from Dan Krasemann of DRK to Marc Epstein (Aug. 20, 2008)

MB15 Excerpts of Deposition of Julie Krasemann (June 13, 2013), taken in Wiley

MB16 “Copyright Assignment, Accrued Causes of Action, and Litigation

Agreement” signed by Barbara Gerlach (June 13, 2013)

MB17

“Copyright Assignment, Accrued Causes of Action, and Litigation

Agreement” signed by Michael Fogden (Feb. 24, 2010)


Agreement” signed by John Eastcott and Yva Momatiuk (Feb. 8, 2010)


Agreement” signed by Anup Shah (May 25, 2011)

MB20 Excerpts of Deposition of Dan Krasemann (Sept. 16, 2013)

MB21

Excerpts of Deposition of Michael Collier (Mar. 18, 2013), taken in Wiley

MB22 Email from Michael Collier to Maurice Harmon, Esq., filed in Wiley (Doc.

54-2)

MB23 U.S. Copyright Registration No. VAu 175-200

MB24 U.S. Copyright Registration No. VAu 516-002

MB25 U.S. Copyright Registration No. VAu 510-555 (first page)

MB26

U.S. Copyright Registration No. VAu 530-479 (first page)

MB27 U.S. Copyright Registration No. VAu 556-895 (first page)

MB28 Excerpts of Deposition of Dan Krasemann (Feb. 18, 2013), taken in Wiley

MB29 “COPYRIGHT – IMAGE NUMBERS BY DATE”



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Ex. Description

MB30 DRK Handwritten Document Notated as “Number Start”

MB31 Excerpts from DRK’s Supplemental Response to John Wiley & Sons, Inc.’s

Requests for Admission, filed in Wiley (Doc. 54-3)

MB32 Abstract of Filenames of Digital Photos allegedly submitted with U.S.

Copyright Registration No. VAu 516-002

MB33 Deposit Copy of Photos allegedly submitted with U.S. Copyright

Registration No. VAu 175-200

MB34 Case Order No. 5, VUI v. John Wiley & Sons, Inc., AAA Case No. 11 143 Y

00658 13 AAA (Aug. 14, 2013)

MB35

Premier Tracks, LLC v. Fox Broad. Co., No. 2:12-cv-01615 DMG (PJWx)(C.D. Cal. Dec. 18, 2012) (slip op.)

MB36 Printout of Spreadsheet (filename “DRK v. McGraw AZ Copyright

Registration Spreadsheet DRK v. McGraw 006395”)



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DRK Photo v. McGraw-Hill Global Educational Holdings, LLC and McGraw-Hill School Educational Holdings, LLC,

Case No. 3:12-CV-08093 (PGR)

Exhibit MB1

DECLARATION OF MICHAEL BEYLKIN IN SUPPORT OFDEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT



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DRK PHOTO v. WILEY & SONS DANIEL KRASEMANN

(602) 254-4111

BARTELT and KENYON

AMERICAN ARBITRATION ASSOCIATION

DRK PHOTO, ))

Claimant, ))

vs. ) No. 76 14300193 11)

JOHN WILEY & SONS, )))

Respondent. ))

DEPOSITION OF DANIEL KRASEMANN

Scottsdale, ArizonaJune 7, 20129:26 a.m.

REPORTED BY:

YVONNE L. WHITEFIELD, CSR

(Copy) Certificate No. 50611

Case 1:11-cv-05454-GBD-KNF Document 54-3 Filed 05/23/13 Page 51 of 149



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1 something happened to me, I wanted them to rest assured

2 that Julie was also there looking over their photos,

3 another responsible party was there; they weren't just

4 releasing their images, which those are their little

509:36 babies and they were concerned with that.

6 There was another person there if anything

7 happened to me.

8 Q. Was Mrs. Krasemann similarly introduced to

9 customers of DRK?

1009:36 A. The customers of DRK would know Julie because she

11 would be answering phones and taking photo requests. And

12 I might ask her to call someone back and she might send an

13 e-mail clarifying a photo request or something.

14 Q. Who is Troy Krasemann?

1509:37 A. Troy Krasemann is my son who we lost six years

16 ago last month in a motorcycle accident.

17Q. Very sorry.

18 A. Thank you.

19 Q. Who is Stephen Krasemann?

2009:37 A. Stephen Krasemann is my older brother.

21 Q. Is Stephen Krasemann part of DRK Photo in any

22 way?

23 A. Stephen Krasemann is one of many photographers

24 represented by DRK Photo.

2509:38 Q. Does Stephen Krasemann have an ownership interest




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1 in DRK Photo?

2 A. Stephen Krasemann has absolutely no ownership

3 interest in DRK Photo.

4 Q. Has Stephen Krasemann ever been an employee of

509:38 DRK Photo?

6 A. Stephen Krasemann has never been an employee of

7 DRK Photo.

8 Q. Have you ever had your deposition taken before?

9 A. I've been involved with one other deposition.

1009:38 Q. In what case were you involved with a deposition?

11 A. It was a case involving a photographer. I

12 believe his name was Ted Wood. I didn't know him.

13 Q. How did you get involved in the case involving

14 Ted Wood?

1509:38 A. It was through the Harmon Seidman law firm.

16 Q. When were you involved in a case involving Ted

17Wood?

18 A. The deposition was -- again, I don't remember the

19 exact day. A couple years ago.

2009:39 Q. Who was the other party to the case with Ted

21 Wood?

22 A. The other party, I believe, was HMH, but I'm

23 quite honestly not sure. I think it was HMH, Houghton

24 Mifflin.

2509:39 Q. Why was your deposition taken in a case between




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BARTELT and KENYON

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1 Ted Wood and HMH or Houghton Mifflin?

2 A. When I went to the deposition, we just discussed

3 licensing practices of DRK Photo.

4 Q. Was DRK a party to that case?

509:40 A. DRK wasn't a party to the case. I was just asked

6 if I would mind giving a deposition, I believe.

7 Q. Were you acting as an expert in that case?

8 A. No, I was not acting as an expert.

9 Q. What was the subject of the deposition?

1009:40 A. I don't remember.

11 Q. Who took the deposition? By that, I mean was it

12 a deposition that Ted Wood took of you, his side, or was

13 it a deposition that HMH took of you?

14 A. It was the other side of the table. I assume

1509:40 that means the opposing attorney.

16 Q. By other side of the table, you mean the

17publisher, not the photographer?

18 A. Yeah. The publisher had two attorneys there.

19 Q. And the two attorneys --

2009:41 A. The two attorneys questioned me.

21 Q. So it was not an attorney from Harmon & Seidman

22 who questioned you?

23 A. No, no. It was the other two attorneys

24 questioned me about licenses.

2509:41 Q. What did they ask you about licenses?




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1 A. They asked me six or seven hours worth of

2 questions about licensing.

3 Q. What was the general thrust of that? I'm not

4 asking you to repeat your testimony, but I'm trying to get

509:41 a sense of what this deposition was about.

6 A. They showed me all sorts of licenses that I had

7 issued in the past and were wondering how I priced photos

8 based on the rights packages and things like that.

9 Q. Do you know how that related to that particular

1009:42 case?

11 A. No, I don't. I don't know what that was about.

12 I just came there and answered their questions.

13 Q. Other than in the case between Ted Wood and HMH

14 or Houghton Mifflin, have you ever given a deposition?

1509:42 A. Not that I recall, no.

16 Q. Have you ever given testimony other than in a

17deposition?

18 A. I gave testimony -- yeah, I think I gave

19 testimony, if that's what you call it. Like in a small

2009:42 court outside of Cottonwood, Arizona. I don't know what

21 kind of court it was.

22 So I guess, yes, I have given testimony.

23 Q. What was the nature of the case in which you gave

24 testimony?

2509:43 A. The nature of the case was -- it was about an




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1 older gentleman that had threatened our children over

2 riding some dirt bikes off in the countryside.

3 Q. So it was not involving photography?

4 A. Nothing to do with photography.

509:43 Q. At the time the Harmon & Seidman firm asked if

6 you would give a deposition in the Ted Wood case, were you

7 then currently represented by Harmon & Seidman in any

8 matters?

9 A. I don't recall if at the time I was represented

1009:43 by them in any other matters because I don't remember the

11 exact time the deposition occurred.

12 Q. When was the first time you retained Harmon &

13 Seidman?

14 A. When was the first time? You mean a date that I

1509:44 first -- or occasion to need their services?

16 Q. Let's start with an occasion to need their

17services. What was the first instance in which Harmon &

18 Seidman first represented you?

19 A. Harmon & Seidman first and only represented us in

2009:44 a case against Houghton Mifflin -- Houghton Mifflin, HMH.

21 Q. Do you know when Harmon & Seidman represented you

22 in connection with a case against HMH?

23 A. I don't know exactly. If I had to make a guess

24 at it, I would say it was around 2009. Between 2008,

2509:45 2010. I'm not exactly sure.




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1 outside the US, we will abide by the rights in No. 2, the

2 charge for that would have been $170 for up to a half

3 page?

4 A. Providing that they were all English language

510:39 copies and that there was print copies only and it was

6 just that one version of the specific title they were

7 asking us to license.

8 Q. And instead of 40,000 copies, they asked you for

9 20,000 copies, the price would have been the same?

1010:39 A. We probably would have billed the same amount

11 because it was covered -- it would have been -- this is a

12 base price for up to 40,000 copies.

13 Q. So if they asked for 20,000 and it's all the same

14 rights and it's in English and it's in North America, that

1510:39 would have been $170 for up to half a page?

16 A. If I understood this question correctly, yes. If

17you're asking -- if you're saying they weren't asking for

18 more than North American, including 10 percent

19 distribution abroad, English language only, only one

2010:40 edition to the book and they just requested 20, we would

21 have billed them this first bracket, this first increment.

22 We would have given up to 40,000. They could have

23 requested up to 40.

24 If they requested 20, they would be charged the

2510:40 same rate.




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1 Q. And if they requested 60, you would have charged

2 them more. And according to this, you would have charged

3 them an additional 10 percent; is that correct?

4 A. At the time -- this is 2000 to 2001 -- we would

510:40 have billed in addition, if the print run went over

6 40,000, at the time we were offering to bill them 10

7 percent additional per 40,000 copy increment.

8 Q. Right. So, again, instead of asking for 40, they

9 asked for 60, what you would have billed them for would

1010:41 have been $170 plus a 10 percent increment, another $17?

11 A. That would be correct.

12 Q. And instead of 60, they asked for 80, that still

13 would be in the second 40,000 increment, so you would have

14 billed them $170 plus 10 percent, so another $17, so you

1510:41 would have billed them $187; is that correct?

16 A. Yes, back in 2001, we would have billed them --

17if they asked for 60 or if they asked for 80, it would

18 have been a 10 percent increase over the 170, making it

19 187.

2010:41 Q. And within the 80, they used 72,000 in North

21 America and they distributed 8000 outside of North

22 America, that would have been permitted in this price

23 because it's 10 percent or less distribution abroad,

24 correct?

2510:42 A. I would say yes, if they printed 80,000, that




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1 they should get 10 percent of that to distribute -- they

2 could distribute up to 10 percent of that total press run

3 abroad as long as they are English language copies and

4 print and still all the same other little parameters.

510:42 Q. If Wiley asked for a print run of 20,000, but

6 made a print run of 40,000 so that they underestimated the

7 print run, you still would have gotten the same price if

8 they gave you the accurate print run; isn't that correct?

9 A. If you're asking if they had came to us and asked

1010:43 for 20,000 and then came to us and asked for 40,000, these

11 were the prices being offered for up to 40. So both of

12 those would have received the same billing assuming they

13 were within the parameters of North American English

14 language only, one print only.

1510:43 Q. Wiley gained nothing in terms of a better price

16 by telling you 20,000 if they were going to really print

1730,000 because either way, they would have gotten the same

18 price; isn't that correct?

19 A. Wiley would have gotten the same price either way

2010:43 between 20 or 30,000, but if they asked for 30 and printed

21 50, then --

22 Q. That wasn't my question. My question was, if

23 Wiley asked for 20 but wound up printing 30, they didn't

24 get a better price because it was still within the same

2510:44 price; isn't that correct?




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1 A. They didn't get a better price per photo, but

2 they exceeded the license. If they requested 20 and we

3 granted 20 and they printed 30, we got 10,000 copies that

4 aren't authorized, that would strike me as infringing

510:44 illegal copies.

6 Q. Before you said the fraud that they were

7 committing was that they were giving you lower estimates

8 so that they can get a better price?

9 MS. BRUSS: Objection; misstates his testimony.

1010:44 BY MR. PENCHINA:

11 Q. But Wiley wouldn't get a better price if it told

12 you 20 and instead it printed 30; the price was going to

13 be the same either way; isn't that correct?

14 A. If they printed 20 instead of 30?

1510:45 Q. If they printed 30 instead of 20, the price would

16 have been the same if they had told you 30 as opposed to

1720?

18 A. If the licensing request came through with 30

19 versus 20 and they approached us prior to publication of

2010:45 the book, et cetera, et cetera, like it should be, we

21 would bill them this 170 because they were under the 40.

22 Q. And that's the same that you would have billed

23 them for the 20?

24 A. 20 or 30,000 copies would have been billed the

2510:45 same fees during that 2001.




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1 Q. And so would 40,000 copies, correct?

2 A. We would have allowed up to 40,000 copies.

3 Q. So if they told you 20 but they actually printed

4 40, they wouldn't have paid anymore if they had told you

510:46 40 in the first place?

6 A. They wouldn't have paid anymore for the licensing

7 fee.

8 Q. And if instead of telling you 20 and printing 40,

9 they wound up printing 60, so they've exceeded the print

1010:46 and they've now bounced into the next increment on the

11 price chart; is that correct?

12 A. If they would approach us on a project with

13 60,000 copies, they would step into the next increment.

14 Q. So they would have been billed an additional $17

1510:46 for that photo; is that correct?

16 A. If they came to us from the get-go prior to the

17book requesting 60,000, they would have been billed the 10

18 percent additional for the extra 40,000 copy increment.

19 Q. And that 10 percent is $17?

2010:47 A. 10 percent of 170, if they used it as a half

21 page, would be $17.

22 Q. So it's your theory that Wiley was giving you

23 these lower estimates to save $17 a photo; is that your

24 theory?

2510:47 A. Well, I don't know what they would be saving per




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1 A. I don't believe DRK Photo was involved that

2 heavily. I don't believe there were thousands.

3 Q. So is this reference in paragraph 17 to

4 photographers or stock photo agencies other than DRK?

511:17 A. It seems to me it could be because we weren't

6 involved with thousands of licenses to John Wiley & Sons.

7 Q. So if it's referring to DRK, it's an

8 exaggeration, correct?

9 A. This would be an exaggeration as to how it

1011:17 affected us.

11 Q. And in terms of affecting others, are you

12 personally aware of others who might have licensed photos

13 to Wiley who believe that those photos have been

14 infringed?

1511:17 A. I'm only aware of one other name.

16 Q. And who is that?

17A. Tom Bean.

18 Q. Other than Tom Bean, are you aware of anyone who

19 believes that Wiley infringed their photos?

2011:18 A. There may be -- there's an agency, Visuals

21 Unlimited, I think it is. Other than that -- I'm not

22 certain what's going on with that one. I don't know of

23 any others' actions involving John Wiley and anybody else.

24 Q. Have you discussed John Wiley with other stock

2511:18 photo agencies or photographers?




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1 Dangerous Earth.

2 Q. So this is a different product and they are

3 coming back and asking for additional rights; is that

4 correct?

511:38 A. They're coming to us for permission to use X

6 numbers of photos. Again, I don't have all the

7 information supporting this request as far as -- maybe

8 those are the two photos, right behind it.

9 They're coming to us asking if they can license

1011:39 these two photos for use in a product called Dangerous

11 Earth, 5,000 copies. That's what it appears to be asking

12 for.

13 Q. Before I direct your attention to another page,

14 DRK registered copyrights in photos at issue in this

1511:39 arbitration; is that correct?

16 A. Yes, DRK Photo has registered imagery and that's

17what's involved, sure, in these claims.

18 Q. Would you please turn to tab two? Tab two of D1,

19 which is DRK's arbitration demand, contains a listing of

2011:40 photos and identifies the photographs and among other

21 things, includes registration, certificate numbers and

22 dates of registration.

23 Do you see all that?

24 A. I do have -- yes, many lines with a -- two

2511:40 columns, registration number, photo number, photographer




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1 and such.

2 Q. The very first photo that's identified is a photo

3 identified by Stephen Krasemann. Do you see that?

4 A. Yes. I do have. Aerial Permafrost Polygons.

511:41 Q. If you look all the way to the right on line one,

6 it identifies a certificate of registration number

7 VAU175-200. Do you see that?

8 A. Yes. I do see that.

9 Q. And that was, according to this chart, registered

1011:41 in 1990. Do you see that?

11 A. I do see it's February 1st, 1990.

12 Q. Was that registration done by DRK?

13 A. I believe that registration was done by Stephen

14 J. Krasemann himself.

1511:41 Q. And if you turn to page 2 of tab 2, D1, look at

16 line 10. Do you see that?

17A. Yes. Photo No. 1S905268.

18 Q. Looking to the right side, it identifies a

19 copyright registration VAU516-002. Do you see that?

2011:42 A. Yes. I do see that.

21 Q. And that was, according to this chart, registered

22 on March 13, 2001. Do you see that?

23 A. I do see that.

24 Q. That one was registered by Stephen Krasemann

2511:42 himself, correct?




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1 A. I believe it probably was registered by Stephen

2 Krasemann.

3 Q. Are you the one who did the registrations for

4 DRK?

511:43 A. Yes. We did all the DRK registrations of DRK

6 images, yes.

7 Q. When did you do that?

8 A. Over a long period. Do you want to know when we

9 started all the way back to organizing the photos?

1011:43 Q. When did you file copyright registration

11 applications?

12 A. I would assume between 2007 or '08 and '09 and

13 it's ongoing.

14 Q. Right. So it wasn't in 2001?

1511:43 A. There was a registration of one photo -- it's not

16 in this claim -- that might have occurred that far back.

17Q. But it was not the ones filed by Mr. Krasemann,

18 by your brother?

19 A. No, it was not.

2012:36 (Deposition Exhibit Number D3 was marked for

21 identification.)

22 BY MR. PENCHINA:

23 Q. Would you please take a look at the exhibit

24 that's been marked as D3 and tell me if that is familiar

2511:45 to you?




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1 A. This looks familiar to me.

2 Q. What is D3?

3 A. It appears to be a copyright registration form

4 V8.

511:45 Q. Is that the registration VAU516-002?

6 A. Yes, it appears to be.

7 Q. And now that you're looking at the registration,

8 can you confirm whether that was done by your brother?

9 A. I believe this was done by my brother. Looks

1011:46 like his signature.

11 Q. But you can confirm that was not done by DRK; is

12 that correct?

13 A. It was not done. We didn't submit it to the

14 office.

1511:46 Q. Did you prepare it?

16 A. It doesn't look like handwriting from us. So I

17would say no.

18 Q. Doesn't look like you had anything to do with it,

19 did you?

2011:46 A. I didn't fill out this form. DRK Photo did not

21 fill out this form.

22 (Deposition Exhibit Number D4 was marked for

23 identification.)

24 BY MR. PENCHINA:

2511:48 Q. Would you please take a look at the document




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1 that's been marked as D4 and tell me whether D4 is

2 familiar to you?

3 A. It appears to be copies of pages from the US

4 District Court case, DRK Photo versus Houghton Mifflin

511:48 Harcourt Publishing.

6 Q. Have you seen this before?

7 A. I would assume I did back in the day.

8 Q. Would you turn to page 4 of Exhibit D4 and tell

9 me is that your signature?

1011:48 A. It appears to be my signature.

11 Q. Did you submit a declaration in the case DRK

12 Photo against Houghton Mifflin Harcourt Publishing?

13 A. I would assume we did, yes.

14 Q. Would you turn to page 2 of your declaration

1511:49 that's Exhibit D4?

16 A. Okay.

17Q. And paragraph eight says, "DRK Photo registered

18 the photographs with the United States copyright office,

19 see Exhibit 3 hereto as follows."

2011:49 Do you see that?

21 A. I do see that.

22 Q. And do you see the last one that's listed is

23 registration VAU000-516-002, which is the same

24 registration we just testified DRK had nothing to do with?

2511:50 A. I do see that.




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1 MS. BRUSS: Objection; misstates the testimony.

2 BY MR. PENCHINA:

3 Q. So your declaration contains a false statement;

4 isn't that correct?

511:50 A. This declaration in a different event or case?

6 Q. Yes. This declaration that was submitted to the

7 court in a different case signed by you is an incorrect

8 statement?

9 A. It may be more accurate to say that DRK holds

1011:50 copyright registration of these photos.

11 Q. That's not what it says, is it?

12 A. No, it's not what it says.

13 Q. So it's not accurate?

14 A. I would say no because I don't believe we

1511:50 registered those back in March of 2001.

16 Q. As you sit here today, can you recall any other

17statements you've given in court proceedings or in

18 depositions that were not exactly accurate?

19 A. No. I try to strive to give accurate statements

2011:51 to the best of my recollection.

21 Q. Are you aware of any other statements in

22 documents submitted on your behalf by your attorneys that

23 contain exaggerations, misstatements, false statements?

24 A. I'm not aware of any, but I would like to clarify

2511:51 that with the fact that lawyers seem to interpret words




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1 differently than the layperson speaks them.

2 And there's been told that there's legal meanings

3 on certain words that I'm not aware of. So when I read

4 that, the way I read them as a layperson it makes sense,

511:51 but then there may be some legal definition of photographs

6 that I don't understand.

7 Q. But you signed the document?

8 A. Yeah. This all appeared, when I looked at it, it

9 all appeared to be accurate.

1011:52 Q. Let's change gears, Mr. Krasemann, a little bit.

11 Let's talk just generally about what DRK does.

12 We know that DRK is a stock photo agency. Tell

13 me, first of all, how do photos get into DRK's collection?

14 A. They're submitted to us by our photographers.

1511:52 Q. Can any photographer submit photos to you?

16 A. For the most part, we quantify a photographer

17when they approach us for representation. So there are

18 photographers who we just kind of turn away or suggest

19 that maybe we're not the right match for them at this

2011:53 time.

21 I thought you were speaking how photos get in. I

22 thought you were talking about photographers that we sign.

23 Q. At this point, just trying to get a better

24 understanding.

2511:53 Does DRK specialize in any particular areas of




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1 photography?

2 A. We're very well known for our international

3 wildlife and natural history, but we have a broader

4 general collection.

511:53 Q. Generally, what type of arrangement does DRK have

6 with its photographers who it represents?

7 A. We are free to license their imagery and split it

8 50/50 with them is generally how it is. They've given us

9 permission to license their imagery at established rates

1011:54 and license as we see fit.

11 Q. Generally, are your arrangements with your

12 photographers on an exclusive, nonexclusive or some other

13 basis?

14 A. There's probably some variety in there.

1511:54 Q. Is there one type or the other that predominates?

16 A. I would say the majority are on a nonexclusive

17basis.

18 Q. And I think we talked before that there really

19 have not been employees. So there are no photographers

2011:55 who are employed on staff of DRK; is that correct?

21 A. We don't have any employed staff photographers.

22 Q. So you don't have work-made-for-hire photos in

23 your collection, if you understand that term?

24 A. We don't hire photographers. We don't have

2511:55 work-for-hire photographers that we employ or staff




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1 photographers. Is that what you mean?

2 Q. Correct. Just another way of asking that same

3 question.

4 To be fair, so I'm not confusing you with legal

511:55 terms --

6 A. I appreciate that.

7 Q. -- work-made-for-hire is a legal term. So to

8 your knowledge, you don't have work-made-for-hire

9 arrangements with your photographers?

1011:56 A. That would be correct. DRK photos isn't doing

11 work-for-hire.

12 Q. With the photographers who are in the exclusive,

13 they are able to continue licensing their own photos even

14 though they're in DRK's collection; is that correct?

1511:56 A. Yeah. The photographers that are nonexclusive

16 with us are free to license the photos that they have and

17seek other representation to license the -- other

18 agencies, whatever.

19 They don't, obviously, have the photos that we

2011:56 have because we physically have them, when in the days of

21 film, a piece of film -- so this person has or that person

22 has it.

23 Q. Has the film been converted to digital or do you

24 still work with film?

2511:57 A. We have converted thousands of our film images to




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1 their photos up for licensing?

2 A. Not the photos that we have. That's why they

3 have us. They don't want to deal with that. They want to

4 be artistic. They want to be out shooting. They don't

511:59 want to deal with all the licensing and detail and

6 pricing.

7 Q. What is the process by which DRK sells photos?

8 And I recognize the process perhaps has changed over the

9 years, so why don't you tell me what the current practices

1012:01 are for licensing photos, generally?

11 A. Current practice for licensing photos?

12 Q. Or for selling.

13 A. Or for the process -- current process for

14 licensing photos is typically we receive a permissioning

1512:01 request and we try to issue a license as best we can to

16 that request.

17We may need to call up and clarify some issues

18 and nail down the license. And then we issue the license

19 to them.

2012:01 Q. Who are DRK's customers generally?

21 A. DRK's customers are international, domestic,

22 international, paper products, magazines, retail books,

23 text books, calendars, posters.

24 Q. Quite a broad spectrum of media?

2512:02 A. Right.




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1 look at what one of the things due to us is, what would

2 the new fee be.

3 We do have wording on the back of our terms and

4 conditions that we'll forgo our right to sue in return for

512:31 a ten-time fee. Those are the two initial things we do,

6 is look at what we would have charged and apply -- it's

7 what we have to go with, the terms and conditions on the

8 back.

9 We would typically offer to deal with the issue

1012:31 at ten-time reproduction if it can be dealt with quickly

11 and not involve lawyers, legal costs.

12 MR. PENCHINA: It's probably a good time for our

13 break.

14 (Lunch recess taken from 12:31 p.m. until

1501:52 1:52 p.m.)

16 BY MR. PENCHINA:

17Q. This morning before the lunch break, I believe at

18 one point we were talking about whether the photographers

19 sell the same photos that are part of your collection.

2001:52 And I think you indicated that they don't because they

21 want to be creative and don't want to get involved in that

22 end or something to that effect.

23 Do I remember that correctly?

24 A. I know that we were talking about film when I

2501:52 said that. They wouldn't be licensing the same image, the




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1 same piece of film because they don't have it. We have

2 it.

3 Q. But then your testimony is not that they wouldn't

4 do it because it's just not something that they're

501:53 interested in doing?

6 A. I said they weren't interested in. I believe I

7 said they couldn't do it because they don't control the

8 film. They don't have it to license.

9 Q. If it's in digital, then they could?

1001:53 A. It's possible, plausible, yeah. The digital

11 imaging could be -- the same identical image could be

12 distributed to multiple licensing entities.


14 identification.)


16 Q. Please take a look at the document that's been

17marked as D5. Tell me if Exhibit D5 is familiar to you.

18 A. The image looks familiar, yes.

19 Q. What is the image on D5?

2001:53 A. It's a spiky-headed katydid by Michael Fogden.

21 Q. Michael Fogden is one of the photographers whose

22 photos are distributed by DRK?

23 A. We license his work. He's represented by us,

24 yes.

2501:54 Q. And Michael Fogden is one of the photographers




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1 whose works are at issue in this case?

2 A. I would have to look at all those individual

3 pictures to find out if his are in it.

4 Q. Is this one of the pictures that's in your

501:54 collection?

6 A. This picture or one very similar to it, we have.

7 I couldn't tell you if it's identical. I would assume

8 that thing was frozen in that position for quite some

9 time. Could have took multiple frames of it. I don't

1001:54 know.

11 Q. Looking back at Exhibit 1, please, in Exhibit 1,

12 tab two where we have the listing of photos, please look

13 at line 19.

14 Is that this photo that is Exhibit 5?

1501:55 A. It's very similar photo.

16 Q. Is it the same?

17A. I could not tell you if it's identical.

18 Q. Does Michael Fogden pay you any royalties for his

19 selling of the photo on his own?

2001:55 A. No. Fogden Wildlife Photographs is a separate

21 entity.

22 Q. As far as you're concerned, they have the right

23 to offer this photo?

24 A. Yes. They would have the right to license this

2501:56 photo.




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2 identification.)

3 BY MR. PENCHINA:

4 Q. Please take a look at the document that's been

501:57 marked as D6 and tell me whether this exhibit is something

6 that's familiar to you?

7 A. It's a familiar-looking picture.

8 Q. Is that a picture that's in your collection?

9 A. I don't know if we have this exact picture in our

1001:57 collection.

11 Q. Assuming that you did have this picture in your

12 collection, does Larry Ulrich Stock Photography have the

13 right to distribute it?

14 A. They have the right to license it, yeah. He has

1501:57 some of his own efforts.

16 Q. Would Mr. Ulrich or Larry Ulrich, Stock

17Photography, pay any royalties or other fees to DRK if

18 they license this photo, assuming it's in your collection?

19 A. No. We would receive nothing from their

2001:58 licensing fees of the photo.

21 Q. Looking at the information below the petrified

22 log photo in the center of Exhibit D6, it carries a

23 copyright in Larry Ulrich's name. Do you see that?

24 A. I see copyright symbol, Larry Ulrich.

2501:59 Q. Is it your understanding that Larry Ulrich owns




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1 the copyright in this photo?

2 A. They assigned copyright registration privileges

3 or rights to us.

4 Q. And the ultimate copyright, where does that

501:59 reside?

6 A. If we registered this image, it would lie with

7 us.

8 Q. So is his copyright notice on this photo

9 inaccurate?

1001:59 A. I don't know because I don't know if we have this

11 exact image, whether or not we register it.

12 Q. Assuming that you do have this exact image and

13 assuming you did register it, is the copyright notice on

14 Larry Ulrich's Stock Photography's page inappropriate?

1501:59 A. Might be out of date, assuming that we have that

16 exact image and registered it through our copyright

17assignment agreement with Larry.

18 Q. What might be out of date?

19 A. The little copyright notice in front of his name

2002:00 on his website.

21 Q. If that notice residing on his website now so

22 that it's current --

23 A. Larry's website, once -- I saw Larry's website

24 once several years ago.

2502:00 Q. No. My question is, assuming that this is on it




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1 right this minute, even as we speak, would it be an

2 inappropriate copyright notice now?

3 A. I don't know all the intricacies of all the

4 copyright laws, legal little intricacies. But might be

502:00 more accurate to go Larry Ulrich/DRK Photo -- I don't

6 really know what technically it should read. I'm not

7 sure -- I don't know why I'm concerned with what he's

8 doing on his website.

9 I don't understand.

1002:01 Q. Well, has his name, his ownership of the

11 copyright being represented to the public --

12 A. So has he made an error?

13 Q. No. I'm asking is he correct?

14 A. Is he correct? On our website, it reads just

1502:01 copyright Larry Ulrich/DRK Photo. I don't know if the

16 omission of the DRK Photo makes that incorrect. I don't

17 know all the intricacies.

18 MR. PENCHINA: Please mark the next one.


2002:02 identification.)

21 BY MR. PENCHINA:

22 Q. Would you please take a look at the document

23 that's been marked Exhibit D7 and tell me whether this is

24 familiar to you?

2502:02 A. This particular one, they've shot a lot of




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1 pictures up in that area. I can't say this particular one

2 sticks in my mind. We have hundreds and thousands of

3 images. There's some favorites that I have, but I don't

4 have them all memorized.

502:02 Q. Are Tom and Pat Leeson photographers that DRK

6 represents?

7 A. Yes. We do represent the work of Tom and Pat

8 Leeson.

9 Q. Are Tom and Pat Leeson photographers that DRK

1002:03 represents?

11 A. Yes, they are. We do represent them.

12 Q. Would you please take a look at Exhibit D1, tab

13 two, line 54 and tell me whether that's the same image

14 that's shown in D7?

1502:04 A. You know, without something to look at it closer,

16 I don't know if there's less foreground in one than the

17other. I don't know if there's less sky in the upper left

18 corner or more sky in one or the other. I don't know if

19 it was windy, if branches are blowing in one of them and

2002:04 not the other, if they're blurred in one and sharp in the

21 other. I don't know if the lighting was the same, if it

22 was the same time of day.

23 Honestly with what I have here, it's not enough.

24 I would have to look more closely.

2502:04 Q. So as you sit here today, you cannot testify




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1 definitively that this is not the same picture?

2 A. I can't testify definitively that it's the same

3 picture, whether or not it's the same image.

4 Q. You can't testify that it's not the same; you

502:04 can't testify that it is the same?

6 A. I can't see in enough detail of both pictures

7 with clarity to know if they're identical pictures or not.

8 Q. Assuming that they are identical, do Tom and Pat

9 Leeson have the right to offer it on their own website?

1002:05 A. They would have the right to offer this picture

11 on their own website because I believe only one of the

12 photographers signed on it exclusively with us -- not --

13 they're one of the photographers that are signed

14 nonexclusively with us as I believe Michael Fogden and

1502:05 Larry Ulrich.

16 Q. Just to clarify the record, because I'm not sure

17that I heard the answer consistently -- so I'm going to

18 ask you the same question.

19 Assuming that this is a photograph that is in

2002:05 your collection, do Tom and Pat Leeson have the right to

21 sell it on their own website?

22 A. If it's exactly the same picture, they would

23 either have to supply a duplicate or digital scan to us.

24 They have no restrictions on what they can do through

2502:06 their marketing efforts.




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1 Q. If they do sell it, they have no obligation to

2 pay anything to DRK?

3 A. No. We're not involved at all with their

4 business.

502:06 Q. Just for clarity, because the court reporter is

6 taking down everything we're both saying, I know I've been

7 guilty of talking while you were talking and confusing

8 her. And at times you're answering before I'm finishing.

9 I just request that you wait until I finish

1002:06 asking the question so the court reporter can accurately

11 take what we both say.

12 A. Okay.

13 Q. Thanks. And I will endeavor to do the same. As

14 I said, I know I've been guilty of precisely the same

1502:06 thing. I apologize to the court reporter.

16 Just one more thing on D7: This one also

17contains a copyright notice in the name of Tom and Pat

18 Leeson; is that correct?

19 A. That's a notice they chose to put on there. It's

2002:07 not my website. It perhaps -- I don't know if it's

21 absolutely correct or they should have -- I don't know

22 when they put this up. I don't know how old this was.

23 I assume at the time they posted this up there it

24 was correct.

2502:07 Q. Are both Tom and Pat Leeson photographers?




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1 A. Yes, as far as I understand it. It's a husband

2 and wife team. They both take pictures.

3 Q. Do you know when works come into DRK's

4 collection, whether it's Tom's work or Pat's work?

502:08 A. No. Typically in their case they put Tom and Pat

6 Leeson on the photo mounts.

7 Q. I may have asked you this earlier perhaps with

8 respect to a particular photo. I'm broadening it out:

9 Did DRK register copyright for all the photos that are

1002:09 involved in this particular arbitration case?

11 A. Well, like we saw before, Stephen had submitted

12 the registration, my brother, on at least two pictures

13 that you pointed out with the registration, with the

14 certificate being returned to our address.

1502:09 Q. Aside from the ones that were registered by

16 Stephen, DRK undertook to fill out the applications, file

17the applications on its own and receive the registrations;

18 is that correct?

19 A. We filed hundreds of copyright applications using

2002:10 that Ekol online filing system.

21 Q. Why did you decide to get registrations?

22 A. We have been urging photographers for years and

23 years, including my brother, to copyright their work so

24 they have some legal standing or some strength behind

2502:10 their ownership, and it just wasn't happening and wasn't




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1 application?

2 A. Are you asking do I know if we included the same

3 photo on more than one application?

4 Q. Yes.

502:16 A. Not to my knowledge, we didn't.

6 Q. When you undertook the registration process, were

7 there particular claims you had in mind that you wanted to

8 pursue?

9 A. No. We undertook it -- it was a two-prong

1002:17 reason. One is we've been wanting to do it for years.

11 And secondly, with everything going digital and online,

12 there seemed more exposure to abuse, people downloading

13 images and such. So we felt they should have a stronger

14 protection by actually registering.

1502:17 So we didn't do it for any specific purpose. We

16 did it for those two reasons.

17Q. I think you said the forms also assigned claims;

18 is that correct?

19 A. I don't understand the forms also --

2002:17 Q. The agreements that you had with your

21 photographers assigned claims to you; is that something

22 you understand?

23 A. I would have to look at the agreement.

24 Q. Without looking at the agreement, do you have any

2502:18 understanding of whether DRK acquired claims from




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1 photographers?

2 A. I'm not sure what you mean by acquired claims.

3 We registered their images and obtained copyrights to

4 those images.

502:18 What is "acquired claims"?

6 Q. Beyond registering their images, is it your

7 understanding -- we'll look at the documents later, but I

8 want to get what your understanding is of what rights or

9 other things DRK received from the photographers with

1002:18 these assignments.

11 A. My understanding, without seeing the form, was

12 that they've authorized us to register these images in our

13 name with the US copyright, become the copyright holder.

14 And the whole gist of it was to -- if we take any actions

1502:19 against people -- I think it went on to explain that any

16 proceeds after deduction on this would be shared 50

17percent between each of us.

18 So that was the gist of the form to me, is that

19 they authorize us to do the registrations and pursuing

2002:19 issues that we might -- those registered images that we

21 licensed and we split the proceeds with them.

22 There's more on there as far as reassignment and

23 things like that.

24 Q. Is it your understanding as we sit here that

2502:19 without looking at the document, that DRK acquired




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1 anything beyond what you just described?

2 A. Such as?

3 Q. Such as anything. Do you have a recollection or

4 an understanding of what you obtained from the

502:20 photographers, if anything, beyond what you already

6 described?

7 A. I believe we obtained copyright assignment which

8 allowed us to register the imagery in our name as the

9 copyright holder, which then we're the copyright holder to

1002:20 enforce those copyrights.

11 Q. Do the rights that were transferred to you revert

12 back or get reassigned back to the photographers at any

13 point?

14 A. I believe they will eventually.

1502:20 Q. When do you believe they will?

16 A. Well, it was upon completion of anything we've

17got going on, enforcing the copyrights, and even at that

18 point, I assume there's a lot of photographers who won't

19 ever want them back because they have no -- I'm not sure

2002:21 what their use for them would be, if an infringement can

21 only occur by the violation of the license and they're not

22 licensing those images.

23 Maybe they'll want them back eventually, but for

24 the most part, I think they'll just leave them in our camp

2502:21 for as long as needed for us to pursue would-be




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2 identification.)

3 BY MR. PENCHINA:

4 Q. Would you please take a look at the document that

502:23 has been marked as Exhibit D8 and tell me whether D8 is

6 familiar to you?

7 A. This appears to be the Copyright Assignment,

8 Registration Accrued Causes of Action Agreement we

9 attached to e-mails to our photographers requesting their

1002:24 cooperation with this. I don't know how you word it.

11 I think this is what was attached to our shotgun

12 e-mailing to our photographers when we were approaching

13 them regarding this matter.

14 Q. Do you notice the handwriting across the top of

1502:24 Exhibit D8?

16 A. I do.

17Q. Do you recognize that handwriting?

18 A. It looks like my handwriting. Looks like a note

19 I made.

2002:25 Q. Could you please read the note?

21 A. Says "Copyright assignment final 06-2l-2008, doc,

22 attachment to e-mails."

23 Q. What does that notation mean?

24 A. This must have been a copy I printed out. So I

2502:25 would have it there in case photographers called me with




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1 questions. I probably had it on my desk and I wrote that

2 note on just so I know that this is what they got, so if

3 they called up with questions, I could reference it.

4 Q. Did you draft the document that is Exhibit D8?

502:25 A. No, I did not draft this document.

6 Q. Who drafted the document that is Exhibit D8?

7 A. I asked Chris to come up with something because I

8 wouldn't know how to draft it. So I had to seek legal

9 advice.

1002:26 Q. By Chris, do you mean --

11 A. Chris Seidman.

12 Q. The notation "final" on Exhibit D8, does that

13 indicate or mean that there were other versions that were

14 not final?

1502:26 A. I don't recall if there were any drafts. I don't

16 recall if Chris and I went back and had a question or

17wanting to know if it was worded right and he sent another

18 one through.

19 I don't recall.

2002:26 Q. Is Exhibit D8 the form that was signed by all of

21 the photographers who ultimately signed a form?

22 A. With the exception of one: This is the form that

23 all photographers -- I should say all photographers signed

24 this form with the exception of one who signed a different

2502:27 form because he wanted to limit the photos that he




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1 assigned to us to certain photos only.

2 Q. Who was that photographer?

3 A. That photographer's name is Doug Perrine. He, I

4 believe, did some of his own -- some of his own

502:27 registrations and he was more protective of his

6 registrations.

7 Q. Just to be clear, other than Doug Perrine,

8 there's no post-final document that other photographers

9 might have signed in lieu of the one marked final?

1002:28 A. There shouldn't be because this date 6-21-08

11 sounds about right for when that e-mail went out. I would

12 feel comfortable saying this is the one that went out to

13 99 of 100 photographers or whatever.

14 Q. Which images does this agreement refer to in

1502:28 connection with any particular photographer?

16 A. It pertains to images selected by DRK and

17included in DRK's collection.

18 Q. By what process does DRK select photos?

19 A. The photographers in the days of film, they would

2002:28 send in 200 pictures to us. From that, we would edit it

21 and keep one or keep 200, return the rest. And the ones

22 we chose are our selects and they got processed into the

23 system.

24 It's similar in the digital age where they'll

2502:29 send us a disk with a folder containing 300 pictures and




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1 we will edit through and select the ones that we feel fit

2 our client's needs and holes in our collection and up to

3 our standards.

4 And we reject the balance.

502:29 Q. When photographers signed this form, was there

6 listing images that were included in this agreement?

7 A. We did not attach itemized pictures, no. This

8 was for images included in our collection.

9 Q. In looking at the last line of the first

1002:30 paragraph of Exhibit D8, it refers to resolution of

11 infringement claims brought by DRK relating to the images.

12 What infringement claims is that referring to?

13 A. Any infringement claims we may bring against

14 publishers for infringing our copyrights.

1502:30 Q. I guess I don't see the word "any" in here. How

16 is it that you understand that to mean any claims you

17might bring?

18 A. Well, if there's an infringement claim that we're

19 pursuing, this does not -- we won't be reassigning the

2002:31 copyrights to them until we settle the infringement,

21 resolution of infringement claims.

22 Q. Then if you settle the infringement claims, the

23 copyright goes back to the photographer?

24 A. I would assume at that time we'll -- whenever

2502:31 that happens, we'll ask the photographers if they would




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1 like them reassigned at this point. We probably let them

2 know as far as we know they're settled, although it's an

3 ongoing process and I suspect they're going to say why

4 don't you hang on to that in case more come along.

502:32 Q. Have you had such a conversation with any

6 photographer?

7 A. Conversation about what?

8 Q. About whether you should hang on to the

9 copyright?

1002:32 A. No, because we've got infringement -- active

11 infringement claims so it's not an issue at this point.

12 Q. But you've resolved infringements claims as well,

13 haven't you?

14 A. I have resolved a case with HMH, one of many that

1502:32 are ongoing.

16 Q. Were there any others ongoing at the time the HMH

17case started?

18 A. I don't know the dates, but I don't even know

19 that the HMH case had begun when they signed these.

2002:33 Q. Were there any other ongoing cases at the time

21 the HMH case started?

22 A. At the time the HMH case started? No, because

23 HMH is the first time in my life we had to take legal

24 action against a publisher.

2502:33 Q. Were there any cases in mind when you sent this




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1 form out to the photographers?

2 A. There were no specific cases in mind.

3 Q. Were there any claims in mind, short of

4 litigation?

502:34 A. I don't believe there were. I don't know. I

6 don't recall if we had any suspicions at that point. I

7 don't believe there were. I believe we just thought it

8 was long overdo that we protect our images.

9 And with the web and things going digital -- it's

1002:34 easy to steal things -- we felt they should be better

11 protected.


13 identification.)

14 BY MR. PENCHINA:

1502:35 Q. Would you please take a look at a document marked

16 Exhibit D9 and tell me whether D9 is familiar to you?

17A. Yes. It looks familiar.

18 Q. What is Exhibit D9?

19 A. It appears to be the, more or less, form e-mail

2002:35 we sent to everyone at the time with this Copyright

21 Assignment, Registration and Accrued Causes of Action

22 Agreement attached to it explaining what we were doing;

23 what we were wanting to do.

24 Q. When you say more or less form, were there other

2502:36 e-mails that went to other photographers?




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1 A. No. I mean this one says dear Annie, the one

2 that went to Larry said dear Larry, the one that went to

3 John said dear John. Again, I don't know how fussy and

4 particular I have to be, but I can't say this is the

502:36 identical form that went to everybody because the name

6 changed at the top.

7 Q. The text in the center is more or less

8 standardized?

9 A. That's what I meant. I call it boilerplate. We

1002:36 took our time to make sure it sounded right and to try to

11 explain any questions they might have had ahead of time in

12 it. This is what went out to a bunch of our

13 photographers.

14 Q. Towards the top of Exhibit D9, it says

1502:37 attachments and it lists copyright assignment final

16 6-21-2008. Would that be what we were looking at before

17as D8?

18 A. Yes. That would be D8.

19 Q. This particular one, D9, went to Annie Griffith

2002:37 Belt; is that correct?

21 A. That's correct.

22 Q. Who is Annie Griffith Belt?

23 A. She's one of our photographers.

24 Q. This Exhibit D9, indicates in the from line that

2502:37 it's from DRK Photo and it has your name; is that correct?




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1 A. That's correct. [email protected].

2 Q. Is [email protected] your personal e-mail address

3 or is that a generic DRK address?

4 A. It's a generic address, but I use it for most

502:38 everything. I believe I do have a personal one, but I

6 don't use it. I don't really give it -- if I've gotten 30

7 e-mails on it in the last five years, I would be

8 surprised. I typically use [email protected].

9 Q. The one you're referring to, other than

1002:38 [email protected], would be a different provider so it

11 would not be at DRK?

12 A. No. I believe it's like [email protected].

13 Q. And at the very top of Exhibit D9, it says Julie.

14 Is that Mrs. Krasemann?

1502:38 A. That's my wife, yes.

16 Q. Do you know why this document says Julie on the

17top?

18 A. I do. We wanted to get them all from -- we were

19 having difficulties with e-mails. I use Outlook Express.

2002:39 She was using Outlook's full-blown program. She had all

21 sorts of contacts set up and things so you just click on

22 their name and send it including all the photographers'

23 information and I didn't have it.

24 I went over to her work station that Outlook has

2502:39 multiple identities, and one of the identities is




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1 [email protected] so we could have the ease of having

2 everybody's e-mails already in the contact list. Yet it

3 looked like it was coming from me at info so they didn't

4 wonder the source.

502:39 Q. So just to be clear, it says Julie because she

6 was somehow involved in the process of when these e-mails

7 went out as opposed to that being a product of gathering

8 the documents for this litigation?

9 A. This says Julie on it, I believe, because we used

1002:40 her work station to send the e-mails. I went over to her

11 area and sat down at that computer.

12 I don't know why that's on there. Its only

13 explanation I could think of is because somehow the

14 computers -- e-mail programs spit out the machine. I

1502:40 don't know.

16 Q. In the text of Exhibit D9, you explain to the

17photographers the reason why you want them to sign this

18 copyright assignment form; is that correct?

19 A. I try to explain what was going on and why they

2002:40 were receiving this request.

21 Q. Other than what it says in this e-mail, which is

22 Exhibit D9, were there any reasons why you wanted the

23 photographers to sign the agreement?

24 A. I don't believe so. I would say no, there were

2502:41 no other reasons. Like I said before, we had gone on too




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1 long without any protection, official copyright

2 registration, and we were worried with the websites and

3 tens of thousands of images being up there for easy

4 picking and we wanted some protection on everything.

502:41 Q. So there are no reasons beyond what's stated in

6 Exhibit D9 for why you wanted photographers to sign these

7 copyright assignments?

8 A. I don't believe there were any other reasons

9 other than what's said on here.

1002:41 Q. Did any of the photographers to whom you sent

11 this e-mail want to discuss the issue after they received

12 the e-mail?

13 A. I believe we had a few that may have wanted to

14 clarify things or, like I said, a photographer like Doug

1502:42 Perrine who has registered his own work who wanted to save

16 that to us, Norbert Woo who got back and said I don't want

17to sign this. Yes, there were minimal correspondence with

18 a few photographers about it.

19 Here is where -- I recalled a while ago about --

2002:42 you asked me if pictures have been registered in the past.

21 This must be maybe where I saw it down towards the bottom.

22 It says, "Further we would like to hear from you if you

23 have registered in the past images with the U.S. Copyright

24 Office" because we were trying to avoid any double

2502:42 registration or anything like that.




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2 identification.)

3 BY MR. PENCHINA:

4 Q. Would you please take a look at the agreement or

502:45 the document that is marked as Exhibit D10 and tell me

6 whether this document is familiar to you?

7 A. This document appears to be assignment on

8 agreement we received back from Annie Griffiths Belt.

9 Q. Is that your signature on the right side towards

1002:45 the bottom on Exhibit D10?

11 A. Yes. That appears to be my signature.

12 Q. That Ms. Griffiths Belt's signature on the left

13 side?

14 A. Yes. It appears to be Annie's signature.


16 identification.)

17 BY MR. PENCHINA:


19 that's been marked as Exhibit D11 and tell me whether

2002:46 Exhibit D11 is familiar to you?

21 A. Yes, it is familiar to me.


23 A. It's the certificate of registration we received

24 back from the US copyright office.

2502:46 Q. What photos does this cover?




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1 A. It covers 1992 published images.

2 Q. How do you know the photos relating to this

3 registration were published in 1992?

4 A. That's when we received them from Annie, when

502:47 they were first offered to the public.

6 Q. And what form did you offer them to the public?

7 A. Well, first of all, she offered them to us at

8 that point. Then they go -- we could be considered the

9 public. Then they go into the collection and get

1002:47 distributed out to customers.

11 Q. And what form were they first published?

12 A. In 1992, I'm going to say these were film images.

13 Q. How were they published?

14 A. They were -- published first date of publication,

1502:48 my understanding was one of the definitions of first date

16 of publication is when they're offered to the public for

17sale or license, they were exposed.

18 Q. How were they exposed to the public?

19 A. They were exposed to us, first of all, DRK Photo.

2002:48 Then DRK Photo offered them to his clients.

21 Q. In what way did DRK Photo offer Annie Griffiths

22 Belt's photos to the public in 1992?

23 A. They were sent out as film submissions to photo

24 requests, as we discussed earlier.

2502:48 Q. Each of these photos were sent out to film




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1 reporter has marked as Exhibit D13 and tell me whether

2 this document is familiar to you?

3 A. It does look familiar.

4 Q. Is D13 the same form letter e-mail except this

503:08 one went to John Cancalosi?

6 A. The first glance, it looks like it's the same

7 boilerplate e-mail.

8 Q. Who is Mr. Cancalosi?

9 A. It's a photographer represented by DRK Photo.


11 identification.)

12 BY MR. PENCHINA:

13 Q. Would you please look at the document that's been

14 marked as Exhibit D14 and tell me what it is?

1503:10 A. I would say it was a followup e-mail to John

16 because we didn't have his signed form back yet.

17Q. Is Exhibit D14 an e-mail that you sent to John

18 Cancalosi?

19 A. It looks like it is. It was sent November 18,

2003:10 because I'm asking him in here -- I guess we're just

21 wondering why we don't have his form back yet.

22 Q. And in the second paragraph of the text of the

23 e-mail that is D14, you state, "Our only purpose in asking

24 you to sign the assignment is for us to be able to

2503:11 register the works for the purpose of pursuing would be




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1 infringers."

2 Is that a true statement?

3 A. That's how the sentence reads, yes.

4 Q. And is it a true sentence?

503:11 A. The way I intended it, it is true, yes. We were

6 registering these so we had some status as a registered

7 copyright holder.


9 identification.)


11 Q. D15, would you kindly take a look at the document

12 that's been marked D15 and tell me if D15 is familiar to

13 you?

14 A. It does look familiar.

1503:12 Q. What is Exhibit D15?

16 A. It appears to be our agreement with John

17Cancalosi, representation agreement dated November 28,

18 1989.

19 Q. And if you turn to the second page of Exhibit

2003:12 D15, the top paragraph is sort of marked out with a

21 squiggled line. Is it your understanding that

22 Mr. Cancalosi scratched out that paragraph?

23 A. It is my understanding because he initialed it,

24 that he didn't want to be responsible for model releases

2503:12 because that's what the paragraph pertains to.




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1 Q. Your agreement with Mr. Cancalosi that is Exhibit

2 D15 is a nonexclusive agency agreement; is that correct?

3 A. Yes. It is a nonexclusive arrangement.

4 Q. And this arrangement is also a 50/50 payment

503:13 split between DRK and Mr. Cancalosi for the sales made by

6 DRK; is that correct?

7 A. Yeah. 50/50 split regarding all sales made and

8 received.


1003:14 identification.)

11 BY MR. PENCHINA:


13 marked as Exhibit D16 and tell me if that is familiar to

14 you?

1503:14 A. Yes. This document looks familiar to me.

16 Q. Is D16 the copyright assignment document that

17ultimately was signed by Mr. Cancalosi?

18 A. Yes. This is the signed executed agreement we

19 received back from John Cancalosi.

2003:14 Q. And this is in the same form as the other

21 assignment agreements we've seen or I should say copyright

22 assignment registration agreement?

23 A. I believe it is, yes.


25 identification.)




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1 BY MR. PENCHINA:

2 Q. Would you please take a look at the document that

3 is marked as Exhibit D17 and tell me whether D17 is

4 familiar to you?

503:15 A. This does look familiar to me, yes.


7 A. It is the copyright certificate of registration

8 we received back from the US copyright office,

9 VA1-669-065.

1003:16 Q. Which photos are covered by the registration

11 that's Exhibit D17?

12 A. It's a group registration of John Cancalosi's

13 1990 published photographs.

14 Q. What photographs are those?

1503:16 A. I don't know the specific photographs without

16 having more supportive documentation behind this

17application.

18 Q. When were the photos that are covered by

19 registration VA1-669-065 published?

2003:16 A. They were published in 1990 between March 15 and

21 December 15.

22 Q. How were they published?

23 A. They were submitted to us. They were offered to

24 the public. As I recall, the copyright office wanted us

2503:17 to refer to the earliest date of first publication on the




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1 application. That's why they noted on the bottom that the

2 complete range of publication date is March 15 to December

3 15.

4 And I believe I queried them and they said up

503:17 here, you should use the earliest date if there's a range

6 of dates.

7 Q. So I'm not sure I understood your answer. How

8 exactly were these photos published?

9 A. Just as the last registration work, they were

1003:17 submitted to the public, to DRK Photo, offered for sale or

11 licensing, which we used as the day of first publication.

12 And then subsequently, they went into our system and were

13 offered to our clients.

14 Q. So which photos were offered to customers in

1503:18 March 1990?

16 A. Again, I can tell you which photos are behind

17these, but we don't have records dating back to 1990 of

18 all our submissions to the various publishers.

19 Q. You don't know which photos were offered to which

2003:18 DRK customer on any given date?

21 A. We no longer have records from 1990.

22 Q. So you no longer know which photos were offered

23 to which customers in March of 1990?

DRK Photo v McGraw-Hill Cos Exhibits

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