August 10, 2012 Update
Document : http://www.scribd.com/doc/102574251/Mann-Mj-Estate-Partial-Summary-Judgement
Court has GRANTED the partial summary judgement request of MJ Estate.
As you know MJ Estate had filed their motion for summary judgement and Mann / Vaccaro had filed their oppositions for some and not all of Estate's requests.
Court found out that Estate has met burden of proof in regards to the following and granted them summary judgement
- Mann / Vaccaro's copyright infringement of the “This Is It” key art, “Destiny” song, and “Thriller” material, as well as for unfair competition and an accounting;
- Mann / Vaccaro cannot use DMCA (digital millennium copyright act) , contributory negligence, waiver, assumption of risk, unclean hands, statutes of limitations, and laches as defenses
Judge goes in detail examining the bankruptcy sale and who owns copyrights as well as the effect of the 2004 lawsuit.
- Court agrees that the bankruptcy sale sold only Debtors’ personal property, and did not transfer any rights, title, or interest to
Jackson’s intellectual property. the court finds that there is no genuine issue of material fact as to Jackson’s ownership of the intellectual property rights.
Court states during bankruptcy none of the Intellectual Property(IP) of Michael was listed as an asset and Katherine and Joe's statements isn't enough as it doesn't explain how they might have owned MJ's IP. Pease's deposition is just a speculation. Court continues to say that regardless of the ownership the bankruptcy sale wording does not transfer intellectual property.
- As for the 2004 lawsuit court says they are two different things as the 2004 lawsuit was about any infringement happening on of before 2004 and the current lawsuit is about post 2009 actions. Court also says none of the claims in 2004 lawsuit was litigated or decided and it doesn't mean just because MJ didn't proceed with the lawsuit it doesn't mean they got the ownership of the assets. Court says the 2004 lawsuit only protects Vaccaro from a past misconduct.
- Estate also wins of false designation of origin as MJ has unparalleled recognition, Mann's logo is a dance pose of Michael and Mann / Vaccaro are selling products related to Michael.
- Judge says it is undisputed that Defendants have used Jackson’s likeness in their corporate logo and advertisements without consent of Jackson’s estate
- There is undisputed evidence that Defendants intended in bad faith to profit from use of Jackson’s name, by registering multiple domain names containing his name or the initials “MJ” to sell Jackson-related products.
- the court finds that Plaintiffs are entitled to a permanent injunction against Defendants’ continued unlawful conduct. In addition, Defendants are unlikely to be able to pay damages, given their substantial outstanding debts. In light of Defendants’ past and present infringement, it is also undisputed that future violations are likely, causing ongoing harm to Plaintiffs and misled consumers.
Summary judgement covered 10 out of 12 original claims. 2 were left : 5 drawings of Michael and false endorsement (thank you note to Estate)
Estate is abandoning both of these claims while reserving their rights. This leaves the only issue remaining as damages.
Estate is asking for $1.5M fair market value for name & likeliness, actual damages, punitive damages and legal fees.
Estate is also open to a bench trial ( verdict decided by a judge only).
Estate has 15 witnesses they are planning to call, 7 of them will only be called if needed.
Estate's witness list is Mann , Vaccaro, Sonia Lowe, a person most knowledgeable about Vintage Associates , Michael Blakey, William Pigg, Fernando Torres, Michael Kunkel
Will be called if needed : Sean Montgomery of BB games, Stephen Bugbee, Robert Creel, CSI Commerce solutions, Lee Durst, Chris Sauer,Keith Lowy
Later today or tomorrow we should get Mann / Vaccaro's list as well.
Okay let's go through some filings
MJ Estate's response to Mann's filing about MJ's will , Estate Executors
Estate is repeating many of their previous points - irrelevant, no legal standing, wrong court etc- in this reply as well. They says Mann is trying to introduce this just to garner sympathy from the jury. Estate says they will establish their copyrights by showing the copyright registrations - which is enough to satisfy the burden of proof. And nothing Mann argues shows how anything about the will can challenge these ownership.
Estate continues to debunk Mann's claims saying there's no relationship between his partnership with Katherine and MJ Estate - just because a beneficiary of the Estate Katherine has went into a business with Mann it doesn't create a relationship between them and the Estate.
To Mann's complaint that "this Court must know the extent the Estate has gone to prevent Katherine Jackson, and therefore the Mann Jackson partnership, from using name and likeness of Michael Jackson", Estate simply states "Defendants apparently
fail to comprehend that Mrs. Jackson does not have the right to commercially exploit Michael Jackson’s name and likeness."
Estate's reply to Mann's response to website / Thriller 25
Estate argues that this point has become moot as the summary judgement has already decided there was a copyright infringement of Thriller 25. Estate still argues that Mann should not be allowed to present versions of the website because Estate wasn't given them and couldn't get their experts to examine them.
Joint Exhibit list
This is an exhibit list - only names & brief descriptions - of items that the sides plan to use at trial. It's all legal documents, communications and such. The only interesting exhibit is this
Email correspondence from Howard Mann dated March 24, 2011, with the subject line “Your resignations!”
It's not clear who this email was sent to but this is included in MJ Estates "we will only use it if needed" section among with Mann's statements / interviews given to TMZ, X17 etc. badmouthing the Estate Executors.
So I guess it's probable that Mann asked the Executors to resign
Mann Defendants filings
Mann's lawyers main point is about punitive damages. They say punitive damages requires malice and Mann did not have this as he believed Vaccaro's and his lawyers representations that they had acquired the IP rights. Mann also says he checked this by approaching the Jacksons - mainly Joe and Katherine. Mann tells that it was Joe and Katherine that mentioned him their concerns about the Executors and the will and the income.
Mann still wants a jury trial and doesn't want to pay legal expenses of the other side.
Mann has 32 witnesses
these overlap with MJ's Estate's witness list
Mann , Vaccaro, Sonia Lowe, a person most knowledgeable about Vintage Associates , Sean Montgomery of BB games, Stephen Bugbee, CSI Commerce solutions, Keith Lowy, William Pigg
Other witnesses are
Branca, McClain, MJJ Productions, Optimum Productions, Sony/ ATV, Brett Livingstone-Strong, Dr. Tohme, Brian Oxman, Joe Jackson, Katherine Jackson, Ed Pease, Brian Oxman, Steve Fernandez, Andrew Baharias, Janet, Randy, Tito, Jermaine, Rebbie, Laurel Henry, Charles Sullivan
More bits of Vaccaro's deposition is filed and in this one we learn that they lied to Katherine. Katherine did not want to do anything with Vaccaro so Mann came up with a fake purchase agreement to hid Vaccaro's involvement and act like he purchased and owned the assets
Little Update :
Howard Mann's lawyer has filed an emergency motion asking for a one month delay in the trial. The reason they are saying is because they had to hire a new lawyer because their current lawyer Lee Durst is the one that consulted Howard Mann in regard to this business deal with Katherine and Vaccaro. As he will be required to testify, he can't be their current lawyer and the new lawyer needs time to prepare.
The new lawyer of Mann also argues that Estate cannot be bringing copyright claims for TII and Opis None (Destiny remix) and such claims can only be brought by Columbia Pictures (for TII) and Sony Music (for Destiny remix) and therefore Estate lacks standing to bring such complaints.
Estate is understandably confused. They are asking the judge to determine the issues that will be discussed at trial. Estate lawyers was thinking as the partial summary judgement determined the issues, the only thing was left to determine was the damages. Estate had stated that they would drop the two claims about Katherine's book (the drawings and the thank you note). Mann lawyers also state that Estate told them they would not be seeking punitive damages. Estate lawyers only planned to use one witness - their expert witness - who would testify the damages to be between $5 to $12 Million (fair market value of the infringing MJ's copyrights and publicity, name , image and likeliness). Estate expected the trial to last 1-2 days.
However Mann has a totally different plan. Estate says Mann is planning to introduce a lot of new issues and claims and defenses and plans to call up to 29 witnesses. So Estate is asking the court to determine what will be the issues allowed at trial.