1 83J5VANA argument 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 THE ESTATE OF JOHN TOWNES VAN 3 ZANDT, et al., 4 4 Plaintiffs, 5 5 v. 05 Civ. 10661 (RJH) 6 6 KEVIN EGGERS, et al., 7 7 Defendants. 8 8 ------------------------------x 9 9 March 19, 2008 10 10:05 a.m. 10 Before: 11 11 HON. RICHARD J. HOLWELL, 12 12 District Judge 13 13 APPEARANCES 14 14 THE LAW OFFICE OF PATRICK T. PERKINS 15 Attorneys for Plaintiffs 15 BY: PATRICK T. PERKINS 16 16 FREUND & BRACKEY, L.L.P. 17 Attorneys for Defendants Egge Co., et al. 17 BY: JONATHAN D. FREUND 18 18 KEVIN EGGERS, Pro se 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 83J5VANA argument 1 (Case called) 2 THE DEPUTY CLERK: Counsel, please state your name for 3 the record. 4 MR. PERKINS: Patrick Perkins for the plaintiff, your 5 Honor -- plaintiffs. 6 THE COURT: Mr. Perkins, how are you? 7 MR. PERKINS: I'm well, your Honor. 8 MR. FREUND: Jonathan Freund for defendant Egge, Co., 9 et al. 10 MR. EGGERS: Kevin Eggers, your Honor. 11 THE COURT: Mr. Eggers, how are you? 12 MR. EGGERS: I'm very well. 13 THE COURT: Please, take your seats. 14 We are here on various motions. I think I would like 15 to start with the motion of the plaintiffs to dismiss 16 Mr. Eggers' cross-claims. 17 MR. PERKINS: The counterclaim, your Honor? 18 THE COURT: The counterclaim, excuse me. We will get 19 to the cross claims subsequently, but let's deal with 20 Mr. Perkins, the plaintiffs' motion to -- for summary judgment, 21 not to dismiss, excuse me -- for summary judgment on 22 Mr. Eggers' counterclaims against the Van Zandt plaintiffs. 23 MR. EGGERS: Excuse me, your Honor. He also is asking 24 for summary judgment on infringement. 25 MR. PERKINS: I have two motions, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 83J5VANA argument 1 THE COURT: Yes. You are also moving for summary 2 judgment on your claims against Mr. Eggers. 3 MR. PERKINS: That's right, your Honor. 4 THE COURT: At this juncture I only want to hear 5 argument on your motion for summary judgment of Mr. Eggers' 6 claims against -- counterclaims against your clients. 7 MR. PERKINS: Thank you, your Honor. 8 As far as plaintiffs can understand, Mr. Eggers' 9 claim, at least as pleaded and as explained in response 10 interrogatories, is the allegation that my clients have, to use 11 his word, stolen copyrights in 46 songs. 12 As he explains it in his counterclaim and in his 13 interrogatories, the basis for that has to do with the 14 formation of the company called Columbine Music, Inc., in the 15 1970s, and that pursuant to a or some, we only have one 16 agreement in the record, but pursuant to an agreement, at least 17 one songwriting agreement of Townes Van Zandt, the songs that 18 were written during a given period were to be owned by 19 Columbine. 20 THE COURT: And Columbine was owned 50 percent by 21 Mr. Townes Van Zandt and 50 percent by Mr. Eggers or 22 Mr. Eggers' companies? 23 MR. PERKINS: Mr. Eggers personally, as far as I can 24 tell. 25 The songs that are identified in his response SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 83J5VANA argument 1 interrogatory -- 46 songs -- of those 46, 36 were in Columbine 2 and there is no dispute about that. The plaintiffs continue to 3 have trouble understanding what the claim is at that point. 4 Everyone acknowledges that at some point -- 5 THE COURT: These 36 songs are listed as part of the 6 Columbine catalog? 7 MR. PERKINS: Yes. And they are identified in 8 response to plaintiff's interrogatory in asking Mr. Eggers to 9 identify the songs that he has claimed -- 10 THE COURT: All right. 11 MR. PERKINS: -- pursuant to the divorce that was 12 entered into -- pursuant to a divorce between my client Jeanene 13 Van Zandt and Townes Van Zandt, Jeanene Van Zandt became owner 14 of Mr. Van Zandt's 50 percent interest in the Columbine 15 catalog. This is something that is not in dispute. 16 In addition, your Honor, in 1996 Mr. Eggers signed a 17 document entitled confirmation of interest which ostensibly 18 confirmed that he and Jeanene Van Zandt were each 50 percent 19 owners in the Columbine music catalog and lists as Exhibit A 20 the songs that are included in Columbine. 21 Again, that is not in dispute. The document has not 22 been disputed as not being accurate and not having been signed 23 by Mr. Eggers. 24 In 1997, shortly after the confirmation of interest 25 was signed Mr. Eggers, at that time, sold his interest in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 83J5VANA argument 1 Columbine songs to a third-party who is not a party to this 2 litigation. 3 THE COURT: This is Bienstock Publishing? 4 MR. PERKINS: That's correct, your Honor. And in the 5 record is a copy of the assignment as it was filed with the 6 copyright office executed by Mr. Eggers. 7 THE COURT: This is Exhibit 4 to your declaration? 8 MR. PERKINS: That's correct, your Honor. 9 So, with respect to those songs that are listed on the 10 assignment, Mr. Eggers has no standing with respect to any 11 claim of having lost or having had these copyrights stolen from 12 him. He assigned them freely to Bienstock Publishing. 13 THE COURT: And although it may not be germane to this 14 motion, who or what is Bienstock Publishing and whatever 15 happened to Bienstock Publishing's interest in the Columbine 16 catalog? 17 MR. PERKINS: As far as I know, your Honor, it remains 18 in tact. Bienstock is a publishing company, it is part of a 19 larger -- 20 MR. EGGERS: It is one of the larger -- 21 THE COURT: You will have an opportunity, Mr. Eggers. 22 MR. EGGERS: I'm sorry. 23 MR. PERKINS: It is part of a larger media company and 24 they continue to be -- or it continues to be the owner of an 25 undivided one half interest in the Columbine songs. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 83J5VANA argument 1 THE COURT: All right. 2 MR. PERKINS: Okay? So, that deals with those 36 3 songs because, as a result of his having assigned those and as 4 a result of there having been an acknowledgment by us all along 5 that Mr. Eggers owned an undivided one half interest in those 6 songs at some point, there can be no allegation of having 7 stolen any copyrights. There hasn't been any evidence that's 8 been shown, for example, that Mr. Eggers did not receive any 9 royalties during the period prior to 1996 when he owned the 10 songs. All of the reports that my client had in its possession 11 were turned over to Mr. Eggers and he didn't put a single one 12 of those into evidence. He never claimed with respect to the 13 songs that were in Columbine that everybody recognizes was in 14 Columbine that anything untoward has happened. 15 THE COURT: Now you are referring to 36 of the 46 16 songs identified by Mr. Eggers? 17 MR. PERKINS: That's correct. 18 THE COURT: Then let's deal with the other 10. 19 MR. PERKINS: With the remaining 10, your Honor, in 20 order for the songs to be in Columbine, they would have had to 21 have been written prior to June 19th, 1983. 22 THE COURT: Let me ask you a question first of all. 23 If they were in Columbine and Mr. Eggers had a 50 percent 24 ownership interest in them by virtue of the dissolution 25 agreement, did not he assign all those rights to Bienstock? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 83J5VANA argument 1 MR. PERKINS: That's correct, your Honor. 2 THE COURT: So that if these 10 songs were in fact 3 Columbine's, Mr. Eggers assigned any such rights to Bienstock 4 in 1996? 5 MR. PERKINS: Your Honor, I don't think we can make 6 that argument. The assignment to Bienstock identifies specific 7 songs. It does not say I hereby assign the Columbine catalog. 8 It sets forth -- 9 THE COURT: It says as follows: Assigns all of 10 assigner's rights, title and interest in and to the musical 11 compositions listed on schedule 1 annexed hereto and made a 12 part hereof, and in and to any and all other musical 13 compositions or interests therein at any time heretofore 14 acquired copyrighted or published by Columbine Music, Inc. 15 That seems to me to include any Columbine songs that 16 may not be listed in the assignment. 17 MR. PERKINS: Your Honor, I stand corrected. I won't 18 argue with the Court. Having seen these kinds of things for a 19 long time often time that is sort of boiler plate language, but 20 that is the plain language of the agreement, your Honor, that 21 anything that was in Columbine was assigned. 22 So, with respect to these 10 songs you are correct, 23 your Honor, that those also would be assigned as part of this 24 assignment to Bienstock. 25 THE COURT: If they were Columbine songs. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 83J5VANA argument 1 MR. PERKINS: If they were Columbine songs. 2 And it turns out, your Honor, that there is no 3 evidence that they're Columbine songs. As a matter of fact, 4 with respect to seven of the 10, there is unrebutted evidence 5 that they were created after June of 1983 and, as a result, 6 could never have been part of Columbine and were not subject to 7 the only publishing agreement that is in the record. And, 8 notwithstanding Mr. Eggers having alleged others, he hasn't put 9 them in the record. But, more importantly, he hasn't alleged 10 any that post-date 1983. 11 So, that takes care of those seven and that, where the 12 dates are pretty clear there in the copyright certificate under 13 the Copyright Act, that is prima facie evidence of the accuracy 14 of the information therein. There has been no evidence that's 15 been put into the record to rebut any of those dates, your 16 Honor. And so, as a result of that, those seven are gone and 17 he hasn't come forward with any evidence with respect to the 18 last three where we don't know the dates to indicate or to 19 prove that they were in fact written during a time they would 20 be in Columbine. 21 Your Honor, on a separate basis with respect to this 22 claim, it is the statute of limitations argument. The Second 23 Circuit, in Merchant v. Levy, made clear what the position in 24 this Circuit is, which is that any claim concerning ownership 25 or co-ownership needs to be brought within three years of that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 83J5VANA argument 1 claim accruing. And, your Honor, a claim accrues for copyright 2 purposes when a potential plaintiff knows or should know that a 3 claim exists. 4 Mr. Eggers has failed to identify a single song that 5 he claims was created without his knowledge. And the obvious 6 time for Mr. Eggers to have effectively challenged the contents 7 of Columbine or what he is entitled to under the agreements 8 with Columbine would have been 1996, when he did the 9 confirmation of interests; or 1997, when he assigned all of his 10 rights in Columbine. 11 Mr. Eggers has portrayed himself throughout these 12 hearings and throughout his papers as an expert in all things 13 Townes Van Zandt. He produced virtually every record that 14 Mr. Van Zandt played on and all of the songs that Mr. Van Zandt 15 that he claims to own, at least in response to his 16 interrogatories, are on albums that he produced. And only in 17 connection with this case when he filed his counterclaim nine 18 months after this claim, this suit was begun, did Mr. Eggers 19 come up with the claim that in fact he is an owner of copyright 20 in certain songs. 21 So, your Honor, under the statute of limitations of 22 the Copyright Act is a separate basis under which Mr. Eggers' 23 claim must fail. 24 Now, I wanted to address one last thing that he has 25 raised, which is, in response to our papers in opposition to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 83J5VANA argument 1 our motion for summary judgment he has come up with a new 2 argument that appears to be the basis of ownership. The new 3 argument is that the document -- the joint or the confirmation 4 of interests indicates that he is the owner of all -- 5 THE COURT: What document is that? 6 MR. PERKINS: Talking about Perkins Exhibit 4. 7 THE COURT: Plaintiff's 4 is the assignment to 8 Bienstock. 9 MR. PERKINS: I'm sorry. You're right. 10 THE COURT: Jeanene Van Zandt 11. 11 MR. EGGERS: It is Exhibit 11. 12 MR. PERKINS: Yes, Exhibit 11 to Jeanene Van Zandt. 13 I'm sorry, your Honor. 14 THE COURT: I have it. What is the issue with this 15 document? 16 MR. PERKINS: As I understand Mr. Eggers' argument, he 17 points to language in paragraph 2 -- 18 THE COURT: Paragraph 2? 19 MR. PERKINS: Let me get his words, your Honor, so 20 that I don't muck it up. 21 This paragraph 11 to Mr. Eggers' declaration, the 22 first one that he put in in response for motion for summary 23 judgment. He says: I'm also the co-owner of all Townes Van 24 Zandt compositions. And then he quotes "whether now or 25 hereafter known or in existence" as provided under the JOA -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 83J5VANA argument 1 which is the confirmation of interest. 2 In that confirmation of interest in paragraph 2 it 3 says the following, and this is lengthy, your Honor, although I 4 will read it into the record if that's all right: 5 Van Zandt and Eggers, as the joint and equal sole 6 shareholders of Columbine Music, Inc., hereby confirm that 7 Columbine Music, Inc., has previously sold and assigned to Van 8 Zandt and Eggers, jointly and in equal shares, everywhere and 9 forever the songs, together with any and all copyrights now or 10 hereafter secured or existing in any of the songs anywhere in 11 the world including the sole right, power, and authority to 12 secure copyrights in the songs, and to have and to hold the 13 same as the sole owner of the songs throughout the world, all 14 registrations with respect thereto and any and all rights and 15 interests of whatsoever nature or description in each of the 16 songs whether now or hereafter known or in existence. 17 And it goes on to say -- and that's the key language: 18 Whether now or hereafter known or in existence including, 19 without limitation, all rights in and to any and all renewal, 20 extension, and reversionary interests of any kind in any 21 territory of the world. 22 As I understand Mr. Eggers' argument, he is claiming 23 that this language actually is an agreement that he is the 24 owner, the one half owner of every song ever composed by 25 Mr. Van Zandt hereafter known -- whether now or hereafter known SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 83J5VANA argument 1 or in existence. 2 Your Honor, I don't think that any rational reading of 3 that document can support that argument and there are a number 4 of reasons. 5 First of all, the plain language of this paragraph 6 makes this clear that the language 'whether now or hereafter 7 known or in existence' refers not to songs, it refers to rights 8 and interests. 9 Further supporting that, your Honor, is the fact that 10 this document is entitled a confirmation of ownership 11 interests. In other words, the intent of the document by its 12 mere title is not to create new rights, it is to confirm 13 existing rights. Everything in here indicates that what was 14 being confirmed was ownership in compositions and songs that 15 were part of Columbine. If it had been the intent to confirm 16 that Mr. Eggers was the owner of all songs that Townes Van 17 Zandt had ever composed, the document would have, for example, 18 defined songs to be defined in the first whereas, not the songs 19 delivered to Columbine but any songs ever composed by Townes 20 Van Zandt. 21 There is simply nothing in this document that would 22 support Mr. Eggers' claim with respect to this document being 23 converted into an assignment of all rights and all songs 24 that -- 25 THE COURT: Well, even when he referred to Columbine SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 83J5VANA argument 1 songs, those songs were assigned by the assignment to 2 Bienstock. 3 MR. PERKINS: That's correct, your Honor. That's 4 correct. Everything flows from these being Columbine songs. 5 THE COURT: Right. 6 MR. PERKINS: Briefly I will just address the fraud 7 claims, your Honor. 8 There appeared to be claims of fraud in the complaint 9 and I won't go through the arguments made in my brief. 10 Mr. Eggers did not rebut any of the arguments or cases that I 11 put forth in my brief with respect to the fraud claim. As a 12 result, we think that claim also dies on the vine, your Honor. 13 THE COURT: All right, Mr. Eggers. 14 MR. EGGERS: Yes, sir. 15 THE COURT: Would you like to respond to Mr. Perkins' 16 arguments in support of the Van Zandt plaintiffs' motion to 17 dismiss your counterclaims against them? 18 MR. EGGERS: Your Honor, I have -- it overlaps between 19 the infringement issues and the counterclaims. 20 THE COURT: I want to take these one at a time so I 21 want to know why you think the Court should not dismiss your 22 counterclaims regarding at least regarding the 46 Columbine 23 songs -- or the 36 Columbine songs and the other 10 songs that 24 you identified in your interrogatories. 25 MR. EGGERS: Yes. I would like to just correct the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 83J5VANA argument 1 Court that the language in the exhibit we were just discussing, 2 my Exhibit 1, the confirmation of ownership, the language is 3 very clear and it doesn't just limit it to Columbine 4 copyrights. 5 I also would like to address -- well, let me just 6 start. There are four controlling agreements that detail my 7 successor's -- my and my successor's ownership rights to the 8 Columbine/Townes Van Zandt catalog. There are four agreements. 9 These four agreements are the following: The 1971 exclusive 10 writers agreement between Townes Van Zandt and Columbine. And 11 then there is a 1978 exclusive writers agreement between Townes 12 Van Zandt and Columbine Music. There is a letter agreement 13 from United Artists which is Exhibit 9 in my affidavit. 14 THE COURT: What is the date of it? 15 MR. EGGERS: It is United Artists' letter -- I will 16 get the exhibit number. It is Exhibit 3 in my affidavit in 17 further opposition. The letter is dated December 19th, 1973, 18 and there is a paragraph at the bottom -- 19 THE COURT: 1973? 20 MR. EGGERS: 1973. 21 So, I am going to have to go from my own plan here. 22 So those are the controlling agreements, okay? 23 THE COURT: You mentioned three. 24 MR. PERKINS: No, there is the '71 agreement, the '78 25 agreement, the United Artists letter agreement, and the joint SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 83J5VANA argument 1 ownership -- confirmation of joint ownership agreement which 2 you have just discussed. 3 THE COURT: That's the 1996 agreement. 4 MR. EGGERS: Right. The language in that agreement is 5 very clear in its statement. 6 THE COURT: You are talking about the 1996 agreement? 7 MR. EGGERS: No, the confirmation of ownership 8 agreement. 9 THE COURT: The 1996 agreement. 10 MR. EGGERS: And it is odd to think that the plaintiff 11 has just said that the title itself misleads because it says, 12 clearly, Confirmation of Ownership Interest. It doesn't say -- 13 and then it goes into describing the confirmation of ownership 14 interests. And the language is very clear. It doesn't -- it 15 doesn't refer to -- if the sentence is following, I just read 16 it and it doesn't just include Columbine songs and I also want 17 to point to the Court -- 18 THE COURT: Let me point out to you the first whereas 19 clause: Whereas certain songs were delivered to Columbine 20 Music, Inc., by Van Zandt -- 21 MR. EGGERS: They're acknowledging -- 22 THE COURT: -- pursuant to the agreement, each a song, 23 collectively the songs. 24 I read that as defining the songs to be certain songs 25 delivered to Columbine Music. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 83J5VANA argument 1 MR. EGGERS: That's for that list, for the list of 2 songs that are attached to the agreement. That's true. But, 3 then it goes on to say, very clearly and there is no -- it is 4 not ambiguous. When it says -- let me just find the language 5 because it is not an ambiguous line: Whether now or hereto 6 known or in existence. Whether now or hereto known or in 7 existence. 8 It is referring to things we know and things that we 9 may not know but are in existence. And it is dealing with 10 copyrights. 11 The agreement -- what the plaintiff leaves out it is 12 not all the Townes Van Zandt agreement because some of it was 13 under contract to publishing companies which we will get into 14 regarding my rights. 15 Townes Van Zandt owned songs individually that should 16 have been the property of Columbine. And I will cover those 17 songs. I prepared a chart of all the Townes Van Zandt songs in 18 the claim by the -- in the plaintiff's papers and I would like 19 to go through that chart because it is each of the individual 20 songs. 21 Excuse me just one second. As I go through my -- 22 THE COURT: Let me ask you if you agree that you 23 assigned all your rights in the Columbine songs to Bienstock. 24 MR. EGGERS: No. I will get into this, what the 25 defendants are doing. To address that issue I just want to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 83J5VANA argument 1 make you aware of -- I'm going to just read what I have to you. 2 THE COURT: All right. 3 MR. EGGERS: Plaintiffs submitted Exhibit 4 to 4 Perkins' declaration in support of plaintiff's motion for 5 summary judgment, document number 146, an agreement between me 6 and the Bienstock Publishing Company. They claim under this 7 agreement I no longer had ownership interests in Columbine. 8 This is inaccurate and misleading to the Court because they 9 failed to include the terms and conditions of the closing 10 documents were part of the sale to the Bienstock Publishing 11 Company. 12 Also, I want to make a point to the Court that the 13 joint confirmation of ownership was not drafted by me or 14 Mr. Perkins but it was drafted by Robert Bienstock who is and 15 will be available for trial to confirm that he drafted and what 16 his intent of the agreement was. 17 They claim that under this agreement I had no longer 18 had ownership interest in Columbine. This is an inaccurate and 19 misleading to the Court because they failed to include the 20 terms and conditions of the closing documents which were part 21 of the sale to Bienstock Publishing. Under that sale, if the 22 assignee failed to assign new copyrights -- though when I go 23 into my other -- this may be a moot point because there are 24 issues that impact these copyrights that are far more serious 25 than this involved that impact both parties. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 83J5VANA argument 1 Under the sale, the assignee failed to renew 2 copyrights of certain Townes Van Zandt compositions then 3 known -- 4 (Reporter clarification) 5 MR. EGGERS: This is inaccurate and misleading to the 6 Court because they failed to include the terms and conditions 7 of the closing documents that were part of the sale to 8 Bienstock Publishing. 9 Under that sale, if the assignee failed to renew 10 copyright to certain Townes Van Zandt compositions, they know 11 my rights -- then known, my rights to those Columbine songs 12 revert back to me in territory -- 13 (Reporter clarification) 14 MR. EGGERS: -- for which they were unable to obtain 15 renewal rights. 16 Plaintiffs, without basis, denied the very existence 17 of the 1971 exclusive writers agreement in the plaintiff's 18 papers. To the contrary, my affidavit in further opposition 19 plainly demonstrates that Columbine began business in 1971, and 20 under the exclusive writers agreements in 1971 Columbine Music 21 published at least 30 Townes Van Zandt compositions, and 22 registered registrations submitted by plaintiffs in connection 23 with their summary judgment motion and produced during 24 discovery confirmed that during 1971 and 1973 Columbine Music 25 did in fact register, on certificates, the copyrights. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 83J5VANA argument 1 I sold my rights to Bienstock for '76 forward. All 2 the fraudulent -- or misconduct, misappropriation of the 3 copyrights, prior to that is my -- belongs to me. And if I am 4 successful in proving that copyrights are taken from me on the 5 income that they -- I am entitled to that income. And that's 6 supported by my documents with the Bienstocks. 7 I would like to go back to -- I would like to address, 8 in regard to my motion, I can read into the record the songs 9 that are in dispute. And one of the claims by the plaintiffs 10 in their defense of copyrights Columbine should have owned and 11 I had a 50 percent interest in and I was entitled to the 12 benefits of that copyright. Also, when I made my sale to the 13 Bienstocks it impacted on the sale price of the catalog because 14 there were numerous songs missing, important songs that weren't 15 included in the list. 16 So, it negatively affected me one on being denied 17 income for the day the songs were misappropriated and used 18 without my knowledge, and taken out when Townes Van Zandt was 19 under contract for covering those four agreements which cover 20 the terms including the UA agreement which stipulates that his 21 first album in 1978 which was "Flyin' Shoes," all those songs 22 would be part of Columbine. 23 The defendants produced copyright certificates to -- 24 and I will go through the copyrights -- "Blue Wind Blew," it is 25 listed as Jando Music and it is a Columbine song. There are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 83J5VANA argument 1 actually documentation -- and also Jando music is an unknown 2 entity, I don't know who that is but that's who they claim is 3 the current copyright holder -- but, in fact, introduced into 4 evidence was a letter from Jando Music to my attorney assigning 5 that song to us, to Columbine. 6 You have "Brother Flower" which, now this is the odd 7 thing, I have to point out and if the Court would like -- 8 THE COURT: You are saying "Blue Wind Blew" is 9 assigned to Columbine. 10 MR. EGGERS: It should have been. It is a Columbine 11 song. 12 THE COURT: All right. And you assigned all your 13 rights on the Columbine songs to Bienstock? 14 MR. EGGERS: Only from 1996 forward. 15 THE COURT: From 1996 forward? 16 MR. EGGERS: Yes. Not back. And I didn't assign -- I 17 didn't know the songs I didn't have. In other words I couldn't 18 assign songs that I didn't know existed that I didn't know I 19 didn't have. The Bienstock agreements was about this thick 20 because it covers transfer of copyrights and everything which 21 cover each copyright and assignment and dates. But so, Jando 22 Music not the correct owner of "Blue Wind Blew." 23 And we submitted, I can give you my exhibit -- I refer 24 the Court to Exhibit 4 in my affidavit in opposition and there 25 is a letter from Jack Muser that shows that "Blue Wind Blew" SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 83J5VANA argument 1 belongs to Columbine. Other Songs listed in here are 2 contradicted by plaintiff's certificates that are contradicted 3 by this letter and the notice of assignment of the copyrights. 4 So, that's another song. This is an exhibit of my, as 5 I said, my Exhibit 4. "Buckskin Stallion Blues" was originally 6 written for Columbine in 1972. This is the odd thing about 7 this as well, your Honor, there are only two copyrights out of 8 the hundred and something copyrights that plaintiffs claim that 9 are in the name of the children. This is one of the 10 misappropriated copyrights, "Buckskin Stallion Blues," and they 11 have it down as Honest To God Music jointly owned by John Lomax 12 and Townes Van Zandt. It was assigned in renewal to John 13 Townes Van Zandt, II, William Vincent Van Zandt, and sons, Care 14 of Bug Music. 15 So, that's another song. This is just a sampling. 16 THE COURT: And you contend that that should have been 17 a Columbine song as well? 18 MR. EGGERS: It is confirmed in writing from Jack 19 Muser it is a Columbine song. And he was under contract when 20 he wrote it. All these songs he was under exclusive writers 21 contract when he wrote these songs and when he misappropriated 22 the songs personally. 23 And then you have "The Catfish Song," Jando Music. 24 Again, the letter from Jack Clement Music Publishing Company, 25 that is a Columbine song. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 83J5VANA argument 1 We then go to "Dollar Bill Blues." I have to raise an 2 issue to the Court because I think it would save a lot of time 3 to the Court because these copyrights, your Honor, are not -- 4 the vast majority of these copyrights are not valid. In a 5 misguided attempt to gain benefit for herself -- 6 THE COURT: You were talking about "Dollar Bill 7 Blues." 8 MR. EGGERS: Yes, I wanted to go through the songs. 9 That's Columbine. 10 THE COURT: If you want to go through the songs go 11 through them. 12 MR. EGGERS: And then you go to -- 13 THE COURT: Is it your contention that Columbine -- 14 that "Dollar Bill Blues" is a Columbine song? 15 MR. EGGERS: Yes. Absolutely. It was on the Flyin' 16 Shoes album. He was under contract in 1978 to Columbine Music. 17 And, the United Artist Records letter agreement stipulates that 18 his first album to be released after the termination of the 19 United Artists agreement had to be Columbine songs. And that 20 was the first album he recorded after the contract was 21 terminated. 22 Then you have "Pueblo of Walls." 23 THE COURT: Is that also, in your view, a Columbine 24 song? 25 MR. EGGERS: Yes. It is a Columbine -- it was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 83J5VANA argument 1 recorded -- 2 THE COURT: Is it your contention that all of these 3 songs were Columbine songs? 4 MR. EGGERS: No. I'm giving you the ones I know -- I 5 am giving you just a sampling, I'm not giving you the whole -- 6 I figure for trial -- I have been advised I'm not here to win 7 the case, I am here to bring the facts to you of what the 8 issues are of what is going on here, and that was registered 9 improperly to Honest to God music. 10 Again, the renewal was claimed by John Townes Van 11 Zandt. 12 Then you have "Snowing on Raton" originally was 13 released and it is also a Columbine song. They show it as 14 Jando Music which I find curious. There is no Jando Music as a 15 plaintiff in this case and so I don't even know what standing a 16 Jando Music has in this case. And that is a corporation, by 17 the way. 18 We then go to "I'm Still Looking for You." 19 THE COURT: It is your view that's a Columbine song? 20 MR. EGGERS: That's a Columbine song. 21 And what the point is, your Honor, is these songs were 22 written on much different dates than the plaintiffs have in 23 their copyrights. And there are, in existence, just an example 24 to give you an example, "The Snow Don't Fall," I produced that 25 album. I produced the album that has "Pueblo of Walls" in it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 83J5VANA argument 1 I recorded that album in 1972 and it is called "Nashville 2 Sessions." 3 So it is not just -- this is a trail. There are 4 actual albums released at a certain point. There are records 5 to these songs and so forth. What I'm seeking is to recover 6 the income and my rights from the day the song was conceived 7 and published and created and generated income. 8 Now, I want to point out why I would not know what 9 songs I owned. My relation to Columbine Music was passive. It 10 was administered by EMI, first United Artists Music and later 11 on, until recently, to EMI Music. I would receive statements 12 from my music publisher on my share of Columbine. 13 In the music publishing business it is not uncommon 14 where royalty statements will only show songs that generate 15 income. It will not list songs that don't generate income. 16 So, you could have a catalog, hypothetically, of 200 songs and 17 seven of them were making money and the rest you don't even see 18 on your statements. So, there was no way of me knowing that 19 these songs had went to Townes and then later on to his wife 20 Jeanene. And I have to say that the concealment is continuing 21 to this day. This is not something that stopped five years 22 ago. 23 THE COURT: The concealment of songs that should have 24 been Columbine songs? 25 MR. EGGERS: About my income and my ownership. The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 83J5VANA argument 1 concealment of my ownership. 2 Not only did Townes Van Zandt know about it, then 3 he -- I will get into case law about that with you because I 4 will discuss that -- because Townes Van Zandt was my partner. 5 He had a fiduciary responsibility with me. He was not only my 6 partner, I discovered Townes Van Zandt. He was best man at my 7 wedding. He was godfather to my oldest daughter. He lived in 8 my home in Brooklyn Heights almost seven years when he had no 9 income and I supported him. And he had, as my partner in 10 Columbine Music, my equal partner, he had a fiduciary 11 responsibility. 12 I want to just read to you the case law about that 13 because in claims a breach of fiduciary obligation, the facts 14 must demonstrate, as here, that the non-breaching party relied 15 on the fidelity of the breaching party. 16 That's a decision that was made here in the Southern 17 District. It is Weiner v. Lazard Freres & Co., 241, A.D.2d 18 114. And I can provide the Court with this. 19 Townes Van Zandt was my equal partner. As I said, we 20 were close friends. The facts would show that there was a 21 fiduciary relationship between Townes Van Zandt and myself and 22 that Townes breached that fiduciary obligation owed to me as 23 demonstrated -- and I want to refer the Court to number 16 -- 24 clause 16 in my affidavit in opposition -- on paragraph 16. 25 In paragraph 16 -- and why I am baffled by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 83J5VANA argument 1 Mr. Perkins' statement that he doesn't understand my claims -- 2 I list and I will read it into the record: Numerous copyrights 3 have false statements of fact. As an example, the song 4 "Buckskin Stallion" was first written and recorded in 1972 and 5 appears on Tomato's "Nashville Sessions." 6 THE COURT: This is paragraph? 7 MR. EGGERS: 16. 8 THE COURT: Of what affidavit? 9 MR. EGGERS: My affidavit in opposition to plaintiff's 10 motion for summary judgment. 11 THE COURT: This is the affidavit of December 18th, 12 2007? 13 MR. EGGERS: The 9th of November, 2007. 14 THE COURT: All right. Why don't you read it into the 15 record. 16 MR. EGGERS: Read it into the record? 17 THE COURT: Yes. Read the paragraph. 18 MR. EGGERS: Okay. Numerous copyrights and false 19 statements of fact. 20 As example, the song, "Buckskin Stallion" was written 21 and first recorded in 1972 and appeared on Tomato's Nashville 22 Sessions and should show Columbine Music and United Artists as 23 publisher for it, at the time, Townes Van Zandt was under 24 exclusive writers agreement. 25 "German Mustard" was written in 1978 and appeared on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 83J5VANA argument 1 the album "Flyin' Shoes" on Tomato and it should have been 2 copyrighted the same year. That song is subject to the United 3 Artists letter agreement and appeared on the album "Flyin' 4 Shoes." 5 "Flyin' Shoes," written in 1978, appeared on the 6 "Flyin' Shoes" album released by Tomato in the same year, and 7 copyright registration shows Columbine Music -- 8 (Reporter clarification) 9 THE COURT: Slow down. 10 MR. EGGERS: And should have copyrighted the same 11 year. 12 Columbine was written in 1978 and appeared on the 13 "Flyin' Shoes" album released by Tomato in the same year and 14 copyright registration -- 15 (Reporter clarification) 16 THE COURT: All right. I don't think you need to read 17 from your affidavit. 18 MR. EGGERS: Yeah it is a long -- it covers a lot 19 of -- 20 THE COURT: I have read your papers. 21 MR. EGGERS: Okay. 22 And I would like to further, with regard to -- sorry. 23 I came prepared for one performance and you changed the 24 schedule. All right. This I would like to read. 25 The paragraph we just discussed, 16 in my affidavit in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 83J5VANA argument 1 opposition, misappropriation of fraud, fraudulent registration 2 in a calculated effort to divert ownership away from Columbine 3 Music and my rightful 50 percent ownership in them. 4 Jeanene Van Zandt's active participation and Townes 5 Van Zandt's active brief of his fiduciary obligation to me is 6 considered, under the law, as a substantial assistance by her 7 which makes her as liable as much as Townes Van Zandt for 8 aiding and abetting this breach of fiduciary duty owed to me. 9 And the Court on that is in the Southern District and it is 10 Kaufman v. Cohen, and it is 307 AD2d 113 and that is the First 11 Department here in the Southern District. 12 I was only made aware of the Townes Van Zandt 13 compositions which were concealed from me by Townes Van Zandt 14 and Jeanene Van Zandt in breach of their fiduciary obligations 15 to me through the documents obtained from the plaintiffs in 16 discovery in connection with this motion. 17 I was shocked to see that these songs were listed as 18 Columbine songs and that the contracts which we have here as 19 evidence were completely ignored by the plaintiffs and Townes 20 Van Zandt, who is now deceased, who is my partner. 21 I just want to look, your Honor, in the plaintiff's 22 papers he has a footnote that denies, to this day, the 23 existence of the '71 writer's agreement of Townes Van Zandt. 24 And throughout his papers -- and the reason why is because of 25 these songs. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 83J5VANA argument 1 THE COURT: And, again, these are all songs that you 2 believe should have been Columbine songs? 3 MR. EGGERS: Yes, they were Columbine. They were 4 written at the time of the exclusive contracts. He was under 5 exclusive writer's agreement. 6 THE COURT: So, during the '70s? 7 MR. EGGERS: The '70s, correct. And the agreements 8 that cover that basically are the two exclusive writers 9 agreements and what I have in my exhibits in exhibits -- in 10 affidavits in further opposition to the plaintiff's summary 11 motion judgment, Exhibit 1 and 2 of his affidavit in further 12 opposition, our copyright certificates that show particular 13 songs written, that Columbine was active from '71 and '73 14 forward and it was not formed -- I suspect what the plaintiff 15 has -- and I am surprised by the lack of knowledge of copyright 16 history -- is that in 1978 we re-instituted Columbine Music 17 corporately but, as you will note by the UA agreement which is 18 dated '73, the letter, it is addressed to Columbine Music, it 19 is addressed to me, Townes Van Zandt and I are both signing it. 20 So, we had been in music with Columbine Music since 21 1971. And the plaintiffs deny that in their papers, and you 22 will see that in their papers. 23 It is the same problem with the Bienstock thing. They 24 get half facts or they try to shade the facts to their 25 advantage and they don't give the full picture to the Court. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 83J5VANA argument 1 And there is even a much deeper troubling aspect of this whole 2 issue, and that is it is very likely -- and Jeanene Van Zandt, 3 which is on the schedule, entered in her name, personally, 4 renewals of 41 songs after the death of Townes Van Zandt. She 5 had no legal standing to enter into ownership of the renewals. 6 Copyright law -- and I have the Court case -- when a writer 7 dies prior to renewal only the heirs, the children, are 8 entitled to renewals. All the agreements, including my -- 9 THE COURT: I'm more interested in your rights and 10 what you claim your rights were. 11 MR. EGGERS: Well, we have covered that, though. 12 THE COURT: We have covered that? All right. Then 13 why don't you sit down and I will let Mr. Perkins take two 14 minutes to respond. 15 MR. PERKINS: Your Honor, if I could invite the 16 Court's attention back to Perkins' Exhibit 4 which is the 17 assignment from Kevin Eggers to the Bienstock Group? 18 THE COURT: Yes. 19 MR. PERKINS: I would like to go through the songs 20 that he lists in his paragraph 16 of his affidavit, the first 21 song "Buckskin Stallion Blues" is on the list, your Honor, of 22 songs that were in Columbine that he sold to Bienstock. The 23 next song, "German Mustard," is on the list of songs. 24 THE COURT: And are there 36 songs that are on both 25 lists? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 83J5VANA argument 1 MR. PERKINS: I don't know the exact number on both 2 lists. 3 THE COURT: Your papers identified 36. 4 MR. PERKINS: There are 36 songs that he identified. 5 Now paragraph 16 only identifies 10 songs, your Honor. Of 6 those songs -- I won't go exhaustively through the list -- 7 there are two songs that he names in paragraph 16 that are not 8 listed in schedule 1. The first is "Catfish Song" which is a 9 song, your Honor, that plaintiffs do not dispute was in 10 Columbine. He was never deprived of his right and so I don't 11 know -- I don't know what the purpose is of listing all of 12 these songs in this affidavit when they are in Columbine. He 13 sold them and was paid. 14 The only other song that's listed on his affidavit 15 that is not listed in Columbine and that we take the position 16 that there is no evidence that it is in Columbine is the song 17 "Still Looking For You." According to the copyright 18 certificate, that song was composed in 1985 which is two years 19 after the term ended in the song writing agreement. Mr. Eggers 20 has submitted no evidence other than a blanket denial that that 21 song should have been in Columbine. None. 22 THE COURT: All right. 23 MR. PERKINS: With respect to the agreements with 24 Columbine, I want to perfectly clear: What we say in our 25 papers, your Honor, is that there is no evidence of agreements SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 83J5VANA argument 1 prior to 1973. We don't have a copy of it. We haven't seen 2 it. Mr. Eggers has not produced it. But, more importantly, 3 your Honor, it is completely and totally irrelevant because all 4 the songs that he has talked about with the exception of one 5 were in Columbine. My client accepted it, Mr. Van Zandt agreed 6 to that, Mr. Eggers signed two documents that said that. 7 With respect to the copyright certificates, your 8 Honor, I will get more into that on my motion for summary 9 judgment on my claim but I would like to make one point: If 10 Mr. Eggers believes that Jando Music, Inc., or Honest to God 11 Music, Inc., had done something wrong, then he should have 12 brought them into this case. Those are juridical entities that 13 he could have sued. He did not do so. There is absolutely no 14 reason to have brought them in because, as I will explain in 15 the next part of the argument, who is listed on the copyright 16 certificate is not germane to this question. Here we have 17 documents that would supersede any information that is on those 18 certificates. We have documents signed by Mr. Eggers, we have 19 assignment documents. There is no dispute, your Honor, that 20 with the exception of one song in paragraph 16, that all of the 21 songs that he has gone to great trouble to explain and show 22 that somehow my clients have done something wrong, they are in 23 Columbine. And, not only that, he got paid for them. 24 THE COURT: All right. Thank you, Mr. Perkins. 25 Now I would like Mr. Freund to address the motion of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 83J5VANA argument 1 Tomato Music Works and -- is it Mary Eggers? 2 MR. FREUND: Yes, your Honor. 3 THE COURT: Mary is her proper first name? 4 MR. FREUND: Yes. 5 THE COURT: All right. I would like you to address 6 their motion to dismiss the cross-claims asserted by 7 Mr. Eggers. 8 MR. FREUND: Thank you, your Honor. First to clarify. 9 Does your Honor want me to go through the brief? 10 THE COURT: Do I want you to go through the brief? 11 MR. FREUND: No, I understand the Court has -- 12 THE COURT: I want argument on your client's motions 13 to dismiss Mr. Eggers' cross-claims against your clients. 14 MR. FREUND: Thank you, your Honor. 15 THE COURT: I have read your papers, looked at the 16 exhibits; so, no, you need not read the briefs to me. 17 MR. FREUND: I understand. 18 Your Honor, Mr. Eggers' claim, he has three basic 19 claims the way we are able to distill his brief. He is 20 claiming an ownership in the physical masters of Tomato Records 21 and the copyrights; he is claiming ownership in the Tomato 22 trade name; and is also claiming ownership in the Tomato 23 trademarks. He is also alleging a breach of contract which, I 24 will explain, has no basis. And he is also alleging fraud 25 which also has no basis. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 83J5VANA argument 1 Regarding the physical masters itself, what Mr. Eggers 2 did is he gifted -- when Tomato Records was formed in March 3 2000, he gifted all the masters, all the copyrights, the Tomato 4 trade name, the artwork into Tomato so Tomato could continue to 5 do business as Tomato Music Works Limited as a record company. 6 THE COURT: And it is your argument that this 7 assignment by gift was an oral assignment? 8 MR. FREUND: Your Honor, Mr. Eggers had testified in 9 deposition which was attached to the declaration of Derek 10 Lemkin -- 11 THE COURT: Yes, I have read his deposition. One 12 would argue that that is confirmation of a prior assignment. I 13 see no written assignment or written deed of gift in the record 14 so I infer that your argument is that the assignment and/or 15 gift was oral. 16 MR. FREUND: Well, it was originally an oral gift, 17 your Honor, but we have provided no written gift, per se, in 18 the record but Mr. Eggers, in that previous deposition, 19 testified that it was done through a writing and he did file 20 gift tax returns. 21 And also our contention is the gift was confirmed 22 later through the deposition testimony and through the various 23 distribution and security agreements which Mr. Eggers signed on 24 behalf of Tomato Music with AEC Corporation. 25 THE COURT: So, your position is that there was a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 83J5VANA argument 1 written agreement but that neither you, your clients, nor 2 Mr. Eggers presently have a copy? 3 MR. FREUND: That's correct, your Honor. Other than 4 the deposition testimony, the various contracts and Mr. Eggers' 5 tax returns which gift tax returns which he testified show the 6 gift. 7 Also Mr. Eggers, in previous testimony, he funded -- 8 he contributed the copyrights to that corporation Tomato Music 9 Works Limited. He also contributed the artwork associated with 10 the albums -- as he had previously testified under oath. And 11 he also contributed the Tomato trade name. That was all 12 confirmed in the distribution agreement signed by Mr. Eggers 13 with AEC which is an Exhibit to our summary judgment. 14 He also confirmed, under oath, that he negotiated this 15 contract and the contract was fair. 16 Under the AEC distribution agreement it recites that 17 other than as -- I won't go through the agreement itself -- but 18 it enures to the benefit of all the Tomato's assignees and that 19 the facts, as stated in the agreement, are correct. 20 Mr. Eggers also authorized Mary Eggers, on behalf of 21 Tomato Records, to sign these agreements. 22 THE COURT: The original AEC agreement? 23 MR. FREUND: The original AEC agreement and the 24 amendment and the security agreement. 25 THE COURT: What is the date of the original SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 83J5VANA argument 1 agreement? 2 MR. FREUND: The date of the original agreement, your 3 Honor, is -- 4 THE COURT: 2001? 5 MR. EGGERS: 2001. 6 MR. FREUND: August 30th, 2001. 7 THE COURT: Thank you. 8 9 MR. FREUND: Even though Mr. Eggers wasn't an officer 10 or shareholder of the company as he testified, he testified 11 that his daughters formed the company. 12 His testimony is clear that he had -- he worked with 13 the company in conjunction with releasing the records, worked 14 with the masters, worked with the artwork, and the company 15 released various CDs, many CDs -- compact disks -- containing 16 masters recited in the attachment to all the distribution 17 agreements and the amendments. On those compact discs were 18 recitations that Tomato Music Works owns the copyrights to the 19 masters and owns the masters. So, as early as 2001 those 20 compact disks were released. 21 As far as Mr. Eggers testifying under oath and signing 22 the agreement that Tomato owned all the assets which are at 23 dispute, his claim also fails as a matter of law because the 24 statute of limitations has run. If it were copyright 25 infringement, the first CDs were released in 2001, his claim SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 83J5VANA argument 1 should have been filed by the end of 2004. He filed his claim 2 September 2006, I believe, so the statute of limitations ran. 3 So, his claim, as a matter of law, should fail. 4 Also, the release of the CDs and the claim of 5 ownership in the contracts was done fully with Mr. Eggers' 6 knowledge and understanding and he unreasonably delayed filing 7 any actions. 8 So, as regards to the use of the masters, if it was an 9 oral assignment confirmed with a writing, the statute of 10 limitations would have been two years. Mr. Eggers' claim still 11 fails as a matter of law on his ownership of the trade names 12 and the trademarks. 13 Also, Mr. Eggers attached to his complaint contends an 14 Exhibit signed by Fred Cummings which I believe tried to 15 confirm -- which was Mr. Eggers' counsel, as he has testified, 16 and attached to his complaint, that's Exhibit 1, and in that 17 memorandum one of the things is stated is that it is to confirm 18 the previous gifts which were made and that a writing, his 19 intent was to do a writing. 20 Mr. Eggers negotiated all the contracts. He 21 negotiated all the security. And, furthermore, to Mr. Eggers', 22 in divorce proceedings in Court in 2001, January, affirmed 23 under oath that he owned no assets including these masters, 24 trade names and trademarks and copyrights. And that's all 25 consistent with Mr. Eggers' previous testimony in the Florida SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 83J5VANA argument 1 litigation that he assigned all of his rights when Tomato was 2 formed in September 2000. 3 Your Honor, we would -- Tomato and Mary Eggers ran 4 this company, released records, all done with Mr. Eggers' 5 knowledge. Mr. Eggers received monies. He negotiated with 6 bona fide third-parties for advanced distribution payments, 7 royalty payments for Tomato. He testified that Tomato received 8 those monies. He testified that he was happy with the 9 agreement, that the agreement was fair. He warrantied that the 10 company owned all the masters in the security agreements. He 11 warrantied that the company owned all artwork and all 12 intellectual property rights. 13 And we would -- we maintain that if a writing is 14 required, that it was satisfied by the deposition and these 15 various security and distribution agreements. But, Mr. Eggers 16 testified that it was a gift, also, and we would also contend 17 that we don't need the -- the writing is not required because 18 the gift is sufficient as an operation of law to transfer the 19 trademarks, the trade names, the masters and the copyrights to 20 Tomato. 21 So, I don't have anything else to add that is not in 22 our papers. 23 MR. FREUND: Thank you, your Honor. 24 THE COURT: Mr. Eggers? 25 MR. EGGERS: Yes, sir. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 83J5VANA argument 1 THE COURT: Would you like to respond to the motion to 2 Tomato Music Works Limited and Mary Eggers for summary 3 judgment -- 4 MR. EGGERS: Yes, sir. 5 THE COURT: -- on your counterclaims against them? 6 MR. EGGERS: Putting aside two agreements which 7 they're trying to back-door into -- the AEC security agreement, 8 the AEC agreements -- the defendants have not produced one 9 document in this case for anything from ownership of Tomato 10 Music Works to stockholders to the alleged, the fantasy that I 11 created the gift in 2000. 12 The company, as the Court knows in a hearing here for 13 restraining order, I presented the corporate books of Tomato 14 Music Works as evidence. The corporate books were in my 15 possession and have never been used. The stock had never been 16 issued. A letter from my -- in this court Mr. Freund makes a 17 reference to the divorce -- my net worth statement in my 18 divorce proceedings which he misrepresented. And at the 19 time -- I hadn't seen it in a long time because he sprung it on 20 me just within a few days before the hearing and I didn't have 21 a chance to research it. 22 I was able to go to a distinguished accountant named 23 Martin Zoll who was 83 years old who was in fact the accountant 24 for the Music Works and who prepared the statement of net 25 worth. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 83J5VANA argument 1 When I said under oath that I didn't own assets, I was 2 saying I didn't personally own them. They were owned by a 3 corporation called Music Works, and Anna Banana, which is a 4 Bahamian holding company. 5 In Mr. Zoll's preparation which is his letter which is 6 in my -- do you want me to give the exhibit number? 7 THE COURT: I don't think you need to address your 8 divorce court affidavit. 9 MR. EGGERS: Okay. 10 THE COURT: I don't view that as particularly 11 dispositive one way or the other. 12 MR. EGGERS: Fine. 13 Then I would like to say I have three daughters, Mary 14 Eggers, Elizabeth and Emily Eggers. My two daughters have 15 signed affidavits, sworn affidavits, a contradiction that there 16 were never any intention on my part that they would -- do you 17 want me to -- you have seen the affidavits, my daughters' 18 affidavits? 19 THE COURT: No, you don't need to read them. 20 MR. EGGERS: Okay. And they make it very clear that 21 in 2001 -- first of all, Tomato Music Works wasn't active in 22 the year 2000, and it didn't become active until 2001 when I 23 entered into the first agreement with alliance. 24 THE COURT: You are talking about AEC? 25 MR. EGGERS: AEC, yes. It is known as AEC Alliance SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 83J5VANA argument 1 which is a big multi-million dollar distribution company. 2 THE COURT: When you say you entered into it, the 3 contract was actually between Tomato Music Works Limited and 4 AEC, is that correct? 5 MR. EGGERS: No, but I negotiated -- 6 THE COURT: Was the contract between Tomato Music 7 Works Limited and AEC? 8 MR. EGGERS: Yes. I negotiated all those contracts. 9 THE COURT: All right. 10 MR. EGGERS: My daughter had just graduated law 11 school, Mary Eggers. She was not acting -- I was going to 12 train her, she was green. I was going to teach her the 13 business. At that time there was never a discussion of 14 transferring of assets of Tomato Music Works. And, as 15 Mr. Zoll's letter who is the man who prepared the statement of 16 net worth -- excuse me, the Music Works accountant. And he 17 stated in his letter, which I have submitted as evidence in my 18 opposition papers, that there was no discussion in 2001, not 19 2000, of any transference of my rights, and that all the rights 20 that I -- Tomato Music catalog and to the trade name Tomato 21 were held by two companies at that time. 22 And I did offer the Court, because the defendants 23 objected to the fact that Mr. Zoll's letter was not an 24 affidavit, I offer to the Court I can gladly have Mr. Zoll 25 provide an affidavit that that letter is a true and accurate SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 83J5VANA argument 1 letter. 2 But, he was the accountant. And at that time there 3 had been no transference. There were no gifts granted. It is 4 a fantasy by Mr. Freund and his associates that -- which they 5 didn't produce, they make claims in Mary's affidavit that are 6 just proven false by my two daughters' affidavits by Mr. Zoll's 7 letter that there was no transference. 8 He refers to Fred Cummings note of a gift in 9 memorandum which, interesting enough, they do not dispute. And 10 one has to ask the question: You don't have four hours of top 11 management attorneys at Warsaw Bernstein devoted to estate 12 planning of transferring all my assets in 2003 if they already 13 had been given in 2000. It is just a convenient way of 14 Mr. Freund trying to get his little clock of -- I'm not a legal 15 expert, but get his little clock of statute of limitations 16 going. 17 And Mary Eggers, I would like to go through -- there 18 are things in her affidavit, just the key points that Mary 19 Eggers makes in her own affidavit which are just false 20 statements. 21 If you will just bear with me, your Honor? Here we 22 go. 23 In the affidavit of Mary Eggers in support of summary 24 judgment they did -- dated the 16th of July, 2007, on page 1 -- 25 and Mary Eggers continually misrepresents and makes false SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 83J5VANA argument 1 statements in the affidavits: My sisters Emily Eggers and Mary 2 Eggers and I formed Tomato Music Works Limited. Number 5. 3 That is proven false by my two daughters affidavits that they 4 had no stock interest, they had no knowledge of, and they had 5 no commitment from me to have any interest in the Tomato Music 6 Works Limited. And that is a sworn affidavit. 7 It also flies in the face of Mr. Zoll's letter who was 8 at the time not only my accountant but Ann Mittendorf's 9 accountant. The company did not -- she says when the company 10 was founded I was appointed president -- that was false -- and 11 managed the day-to-day operations. The company did not become 12 active until the summer of 2001 when we negotiated for the 13 first release the Townes Van Zandt "Texas Rain" album. 14 Upon information and belief -- without any 15 documentation, proof, just hearsay on Mr. Freund's part, 16 hearsay on my daughter's part and contradicting Mr. Zoll who is 17 the accountant for the company, contradicting Fred Cummings' 18 memorandum, contradicting my daughters' affidavits, there were 19 no assignment of assets to the catalog music published and 20 records relating -- 21 (Reporter clarification) 22 MR. EGGERS: You are talking about 40 years of 23 lifetime. 24 Your Honor, you are talking about tens of thousands of 25 masters. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 44 83J5VANA argument 1 The defendants have given the Court a handful -- they 2 refuse, first of all, in my discovery, to come up with any 3 corporate documents and, in fact, I wanted to put something on 4 the record in relation to this issue because Mr. Freund and his 5 associates and my daughter never produced any relevant 6 documents in my discovery. They claim that all documents were 7 lost, missing. 8 In my papers, which I sent the Court a courtesy copy 9 to Judge Ellis in discovery, there was an affidavit submitted 10 by an employee by the name of Michael O'Neil of the Egge 11 Company who describes that eight computers and the company 12 records are missing. The records were in the possession of 13 Mr. Freund and his associates and my daughter. 14 You can't run a multi-million dollar music company 15 without artist contracts, without publishing and license 16 agreements, without royalty statements, without balance sheets, 17 without stock holders. They provided nothing. And even though 18 the Court tried to assist me as a pro se applicant and 19 compelled Mr. Freund in Court order to deliver documents, he 20 failed to deliver anything. 21 MR. FREUND: Your Honor, I'm going to object. That 22 mischaracterizes the ruling of the magistrate. 23 THE COURT: I don't think I want to hear arrangement 24 on discovery disputes. In any event, those were properly 25 raised before Magistrate Judge Ellis and -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 45 83J5VANA argument 1 MR. EGGERS: It raises one issue, your Honor. 2 THE COURT: If you wanted to appeal any of his 3 decisions, you could have. 4 MR. EGGERS: No, I just want to bring to the Court's 5 attention I raised the question whose benefit did it serve that 6 we have defendants who don't produce any support of this? All 7 they have is statements and affidavits or fantasy writing by 8 Mr. Freund to -- without -- with the exclusions I said, which 9 we will address, with the exclusion of the AEC security 10 agreement and the exclusion of the AEC record, the distribution 11 agreement. Other than that they have submitted no 12 documentation to show there was a gift given in 2000, that he 13 transferred my -- you know, when you transfer assets, 14 copyrights -- 15 THE COURT: Well, they do refer to your direct 16 statements in your deposition. 17 MR. EGGERS: And I will deal with that. 18 THE COURT: That you transferred it. 19 MR. EGGERS: I will deal with that. 20 THE COURT: So let's not overlook that. 21 MR. EGGERS: We will not and I will deal with that 22 because there is a valid point with that. And that's what 23 they're back-dooring into, what they're hanging their hat on, 24 is my statements in deposition where, you know, to deal with 25 it, your Honor, under Rule CPLR 3116 I have the right to read SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 46 83J5VANA argument 1 the deposition. I never was given the deposition to read or 2 correct. I went on record -- 3 THE COURT: You are not arguing that your answers were 4 improperly transcribed, right? Your argument is that you were 5 unable to focus because of your illness. 6 MR. EGGERS: No, there is two things my argument 7 entails. I corrected the record not in my affidavit, I 8 corrected my letter to a letter to the senior chief counsel at 9 AEC, Isabelle Barney. I went on record at the time that my 10 deposition was incorrect and I listed the things that I 11 misspoke and that letter is in evidence and that was sent to 12 chief counsel. 13 So, two things. I didn't have the right to correct 14 which I have under the law, and so since I didn't get the 15 deposition I sent a letter putting them on notice of my changes 16 and that was done years prior to this case. 17 And then I want to lead into Mr. Cummings. 18 Mr. Cummings was the chief legal counsel to Tomato Music Works 19 Limited. It was Mr. Cummings who formed the Tomato Music Works 20 Limited on my behalf and for my sole benefit, not for my 21 daughters as my daughters clearly state in their affidavits 22 contradicting their sister's false statement. 23 THE COURT: So were you mistaken in your deposition 24 when you said that you had given the shares to your daughters? 25 MR. EGGERS: Let me explain so your Honor understands SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 47 83J5VANA argument 1 what is happening. 2 THE COURT: It doesn't sound like you are confused. 3 It was a pretty direct question and a pretty direct answer. 4 MR. EGGERS: Your Honor, I had been -- I was confused. 5 And I will tell you something why I was confused about. And I 6 didn't find out until I went back to New York and spoke to 7 Mr. Cummings. 8 I presumed that certain -- under the memorandum that 9 Mr. Cummings had prepared I presumed certain work had been 10 going forward. It had been stopped. And I, at the time, I was 11 in the middle of three years of extensive chemotherapy. I, in 12 that period of my health where I worked in my bedroom and I 13 walked to my desk in my apartment where my office was. I, at 14 that time, could barely put my socks on. And I wanted to get 15 out of there and I just raced through that deposition and I 16 didn't -- 17 THE COURT: I don't underestimate the seriousness of 18 your physical condition but the questions and the answers 19 weren't confusing and it was -- they're almost as simple as: 20 Is the sun shining? or Is the moon out? 21 MR. EGGERS: Your Honor, I -- 22 THE COURT: It is not that you could have been 23 confused. 24 MR. EGGERS: No, I was confused about what work had 25 been done on my, on the memorandum that Mr. Cummings and Barry SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 48 83J5VANA argument 1 Klingman, the top tax person at Warsaw Bernstein was preparing. 2 And if you read that memo carefully, because it is just a short 3 period of time, you also have to understand, your Honor, I'm 4 going to make reference to something I would like to call your 5 attention to because I think it is important for to you digest 6 the problem that was going on. 7 I would like to call it to the Court's attention -- I 8 don't need to read it into the record at this time -- but in 9 the exhibits to my opposition to the plaintiffs, I would like 10 to make you aware of certain letters that Mr. Cummings wrote on 11 behalf of Tomato Music Works during this crisis with the 12 Alliance legal dispute. Just a second, your Honor. 13 At the time of those hearings I had negotiated for the 14 last eight months prior to that a $2,800,000 contract with 15 Alliance which they materially breached. The only attorney 16 acting on behalf of Tomato Music Works was Warsaw Bernstein. I 17 had hired Mr. Freund's associate, who has seemed to have taken 18 over the company with my daughter, to represent me in some 19 matters that were of a limited nature. 20 But, Mr. Cummings wrote two very extensive letters, 21 which are in evidence, relating to the case that was involving 22 Alliance at the time. All I can say about that deposition, 23 though you can read it on the paper and it seems very cold, but 24 it was not. I was there. I was under enormous stress. I 25 really shouldn't have even been there. I should have stayed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 49 83J5VANA argument 1 home on doctor's orders but I wanted to take the heat over my 2 daughter. And I just basically made a lot of answers that were 3 incorrect. That record was corrected. That record was not let 4 to stand. In my letter to the chief legal counsel to AEC 5 Alliance I made it very clear what assets were not in the 6 company. 7 And also I want to point out to the Court, which I 8 think is an important issue here because Mr. Freund, again 9 through his associates and my daughter at the expense of my 10 other daughters who have been denied -- you know, I was a very 11 sick man. I was told I had six months to live. I almost died 12 twice. I was in critical condition during that period. I 13 wanted to leave my daughters a multi-million music company. 14 Both my daughters now, Elizabeth and Emily, have nothing. They 15 have no basis to even know what went on with the company. They 16 allege that I made a gift to my daughters. My daughters, in 17 their affidavits, have made it clear that was never the case. 18 And that goes to the hard of who even owns Tomato Music Works. 19 The plaintiffs -- the defendants have been liquidating 20 the assets of Tomato Music Works. They have sold off hundreds 21 of thousands of dollars of assets and we don't even know who 22 the stockholder -- their pretext that I gave it to my daughters 23 is a sham. And the deposition taken on -- and if the Court, if 24 the law allows, an unethical attorney with my daughter who was 25 brought under his wing to slip in and take over the company at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 50 83J5VANA argument 1 the expense of myself and my other two daughters then I guess, 2 you know what? I don't know what to say with what is taking 3 place here because all of this early stuff about shifting over 4 assets is nothing. 5 Mr. Cummings, when he refers to the gift in his 6 memorandum, is referring to a gift that's going to be done at 7 that time in 2003. He is not referring to a past gift in 2000 8 which is only a figment of their imagination. And it was me 9 and I was confused because I was referring to the gift that 10 Fred Cummings was planning to make. And when I was referring 11 to things I presumed that work was being done. We were also in 12 the middle of a serious financial crisis at that time and there 13 were no stockholders in the Tomato Music Works. I was the only 14 owner of the Tomato Music works at that time. 15 THE COURT: All right. Anything further, Mr. Eggers? 16 MR. EGGERS: Let me just see. 17 I also would like to point out that my daughters' 18 affidavits contradict my own statement. I would like to point 19 out also Mary Eggers attended two long sessions and, as you 20 know, as your Honor sees, they were carefully noted by Fred 21 Cummings who works with a very distinguished firm uptown and is 22 senior partner. 23 During those meetings Mary Eggers never raised the 24 issue that I assigned rights already. Why would Mary Eggers 25 attend a meeting in 2003 for an extensive discussions in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 51 83J5VANA argument 1 transferring my assets and the trade name "Tomato Music Works" 2 when she "knew that I had already gifted this." 3 And an IRS gift, by the way -- a Tax IRS gift, which 4 they're claiming I made, is filed with the IRS. It would be 5 sent to the beneficiaries. None of my daughters not only had 6 no knowledge of it, Emily and Elizabeth, they never even knew 7 that -- it was never even something that was discussed. 8 I want to point out one other thing, too, that is a 9 contradiction in the plaintiff's position. 10 You have heard talk throughout these papers of me 11 assigning the trade name "Tomato" to the Tomato Music Works. 12 It is in direct contradiction of -- what had really happened, 13 your Honor, was that because -- you will see it in 14 Mr. Cummings' correspondence; the scenario that took place, and 15 this is the facts, I don't know the law but I know the facts of 16 what happened, was because of the collapse of the $2,800,000 17 deal with Alliance, Tomato went into a nose dive, a financial 18 nose dive, and I was very angry. I had been sick. I got 19 myself up and built the company back up and we were doing 20 millions of dollars of business and the major corporation 21 reneged on the deal. And then they had the audacity to sue me 22 and try to take the company that they had just ruined. And I 23 was forced to close Tomato down and make a deal through 24 Mr. Brackey. 25 THE COURT: So you closed Tomato Music Works Limited SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 52 83J5VANA argument 1 down? 2 MR. EGGERS: Down. 3 THE COURT: When was this? This is in? 4 MR. EGGERS: 2003 and going into 2004. 5 The Egge Company was formed. Egge, beginning E-G-G-E, 6 Eggers. If you notice my daughters' sworn affidavits they 7 refer to the fact that they never were promised any interest 8 equity or assets from the Tomato Music Works. They weren't 9 issued stock in the Egge Company because an investor was 10 brought in by the name of Grant Johnson of Benevolent Capital 11 to put up $750,000. And I was going to enter into new 12 agreements to transfer -- as my daughters say in their 13 affidavit, to the Egge Company. 14 Those agreements were never done. 15 Egge filed bankruptcy. There are, attached in my 16 exhibits -- and this is the inconsistency in Mr. Freund's 17 position -- Exhibit 6 of my further opposition there are album 18 covers, artwork of Tomato product, and on these products there 19 is a line that says: Tomato is a trade name of The Egge 20 Company, Limited. Okay? 21 On albums by, which that's just -- I would just give 22 you two, and those also are Townes Van Zandt masters they claim 23 copyright ownership of. 24 Just bear with me. On the Tomato album with the same 25 credit line: Released by -- trademark owned by Egge. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 53 83J5VANA argument 1 So, it was never assigned. And they now have the 2 audacity to come into this Court and say that I gave them the 3 trade name when Egge -- Egge is claiming the trade name Tomato. 4 THE COURT: All right. Thank you very much. 5 MR. EGGERS: I just want to make one last thing. 6 THE COURT: Well, you can't go on forever so sum up, 7 please. 8 MR. EGGERS: Albums released by Lena Horne, Carmen 9 McRae, Bill Monroe, Mike Bloomfield, Bob Wills and the Texas 10 Playboys, Billie Holiday, Dinah Washington, the Reverend Billy 11 and The Stop Shopping Choir, the Jay Slay Band, all these 12 titles have the same credit line, that the trade name of Tomato 13 is owned by the Egge Company. 14 THE COURT: Thank you, Mr. Eggers. 15 Mr. Freund, do you wish to briefly rebut? 16 MR. FREUND: Thank you, your Honor. Just really 17 briefly. 18 THE COURT: Clarify something for me, Mr. Perkins. 19 The Tomato catalog lists 15 or so Van Zandt albums. What is 20 plaintiff's position on whether or not Tomato or any related 21 entity has the copyright to those albums? What is the 22 relationship between the assignment of the Columbine catalog to 23 Bienstock and the list of albums and the Tomato catalog. They 24 don't overlap? 25 MR. PERKINS: They really don't because they're really SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 54 83J5VANA argument 1 apples and oranges. The Columbine issue and the basis for our 2 claims has to do with copyright and compositions. 3 What is at issue between Mr. Eggers and his daughter 4 and Tomato Music Works is ownership of copyright in the sound 5 recordings that make up the albums. And so, the issue of who 6 owns that, you know, is obviously what Mr. Eggers has brought 7 to the fore. 8 Tomato Music Works has represented to us, and based on 9 their legal position, that they are the owners. But, it 10 doesn't really ultimately affect our claim one way or the other 11 because whoever owned it was using the compositions without 12 mechanical license. 13 THE COURT: All right. Thank you. 14 Mr. Freund? 15 MR. FREUND: Thank you, your Honor. 16 Just to address a few things that Mr. Eggers cited the 17 Court. First of all, does this Court have any questions for 18 me? 19 THE COURT: No. 20 MR. FREUND: Okay. 21 Regarding Mr. Eggers citing to his daughters' 22 affidavits, the daughters and their affidavits say specifically 23 that we have no personal knowledge of the affairs or the 24 understandings of the Tomato Music Works Limited. 25 Mr. Eggers confirms that he negotiated all the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 55 83J5VANA argument 1 contracts, the AEC distribution agreement, and he's provided no 2 evidence to show that there is any disputed material issues of 3 fact. 4 Mr. Eggers can't escape from his testimony and I want 5 to read it in the record but it is already attached to our 6 papers. And I know the Court has read his deposition 7 testimony -- 8 THE COURT: Yes, I have. 9 MR. FREUND: -- which is pretty clear that Mr. Eggers 10 gifted all the masters to the company. Like, for example, on 11 page 60: 12 "Q Do you maintain a copy of the transfer document of the 13 masters to either your daughter or the company? 14 "A Oh, absolutely. 15 "Q Do you maintain copies of the rights documents? 16 "A Absolutely. 17 "Q There was a transfer document that transferred all these 18 rights to the girls? 19 "A Correct." 20 he also testified that he transferred the Tomato trade 21 name and the artwork as well in the deposition testimony. For 22 example, page 66: 23 "Q Okay, so you transferred the masters and the rights to the 24 masters, you transferred the trade name Tomato? 25 "A (witness nods) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 56 83J5VANA argument 1 "Q And you transferred the artwork associated with the 2 packaging for the product? 3 "A Right." 4 So, whether Mr. Eggers was confused or not confused, 5 the testimony is pretty clear. Furthermore, when asked in the 6 deposition whether Mr. Eggers felt taken advantage of in 7 negotiating the AEC agreement he answered, no, I was very happy 8 with the contract. And he also testified he felt it was a fair 9 agreement. 10 Regarding the transfer of the copyrights was effective 11 under Section 204. Mr. Eggers, whether he did a written 12 assignment originally or a gift assignment, the AEC agreements 13 signed by Mr. Eggers are enough to constitute a writing for 14 purposes of 204 as an instrument of conveyance of the 15 copyright. The masters are listed attached to the distribution 16 agreements. And, Mr. Eggers also testified in litigation that 17 those documents were correct and true and correct copies. 18 So, defendants would contend of the Court that the 19 distribution agreements and security agreements were effective 20 transfers for purposes of satisfying Section 204. 21 Also, just to be clear, Mr. Eggers confirmed in the 22 agreement -- this is in Section 11.2: This agreement, together 23 with the distribution agreement, represents the entire 24 understanding of the parties with respect to the subject matter 25 which is the masters and supersedes all prior agreements, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 57 83J5VANA argument 1 negotiations, understandings, etc. 2 And in those distribution agreements Mr. Eggers, on 3 behalf of Tomato and his daughter Mary, both signed that Tomato 4 Music Works owned all right and title to the masters and the 5 underlying intellectual property of those masters. That's 6 repeated everywhere throughout the agreement. Mr. Eggers even 7 testified that he received advances and this was something that 8 was done in trade. Defendants claim that he is estopped to 9 claim otherwise. He has represented third-parties in 10 litigation that he didn't own any interest in; that Tomato 11 owned the masters, that Tomato owned the masters, the 12 copyrights, the trade name, the artwork and the CDs themselves. 13 And also, when asked by the Court whether Mr. Eggers 14 was confused and he indicated that he was and he said he wrote 15 a letter, the Court will note that the deposition date of 16 Mr. Eggers was June 3rd, 2004. Mr. Eggers testified that he 17 wrote a letter disputing his deposition testimony but that 18 letter is dated 2003. So, we just -- I mean that letter -- 19 THE COURT: The letter is dated before the deposition? 20 MR. FREUND: Yes. So, that speaks for itself, your 21 Honor, that Mr. Eggers never corrected his testimony and was 22 perfectly happy to testify that Tomato owned masters that he 23 conveyed all masters, all the copyrights, all interest to his 24 daughters for Tomato Music, and it is unequivocable and 25 Mr. Eggers never bothered to correct the record. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 58 83J5VANA argument 1 Thank you, your Honor. 2 THE COURT: Thank you. 3 MR. EGGERS: Can I speak, your Honor? 4 THE COURT: No, I think I have heard enough argument 5 on this motion. 6 Now I would like Mr. Perkins to address the motion of 7 the Van Zandt plaintiffs for summary judgment on their claims 8 against Mr. Eggers. 9 MR. PERKINS: Thank you, your Honor. 10 Your Honor, in order to succeed in our claim for 11 copyright infringement, plaintiffs must demonstrate ownership 12 of valid copyright, first; and second, that there was 13 copying -- unauthorized copying. 14 Mr. Eggers has conceded in his papers that a 15 mechanical license is required in order to put out a sound 16 recording and he also concedes, at paragraph 29 of his 17 declaration or of his affidavit, that he was unable to 18 negotiate a mechanical license with the plaintiffs and, as a 19 result, put out the records without such mechanical licenses. 20 THE COURT: What records are these? 21 MR. PERKINS: Those records, your Honor, are the 22 records that we have identified as the infringing CDs, and they 23 are attached -- their covers are attached -- excuse me, your 24 Honor. 25 THE COURT: How many of them are there? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 59 83J5VANA argument 1 MR. PERKINS: There are 15, your Honor. 2 THE COURT: Do have the exhibit to the complaint? I 3 don't have it up here. 4 MR. PERKINS: Which one, your Honor? 5 THE COURT: The exhibit you just referred to which has 6 photocopies of the covers of the CDs. 7 MR. PERKINS: Yes. The exhibit that has the covers is 8 Exhibit 4 to the Van Zandt declaration. 9 THE COURT: Exhibit 4 to the Jeanne Van Zandt 10 declaration? 11 MR. PERKINS: Yes. For the Court's convenience, the 12 names of the infringing recordings are listed in the so ordered 13 consent judgment which is Exhibit 5 to my declaration. 14 THE COURT: Were all of these put out during a 15 particular period in time? 16 MR. PERKINS: Yes, your Honor. Let me direct you to 17 that information. The first of them, "The Best of Townes Van 18 Zandt" was released on November 1, 2000. 19 THE COURT: Excuse me, 2000? 20 MR. PERKINS: 2000, yes. The last of them, "Light at 21 Union Chapel," was released October 25th, 2005. And all of 22 them in between. 23 So, there are 14 -- I'm sorry, your Honor -- not 15. 24 THE COURT: I hesitate to get back to the prior two 25 motions, but are all of these issued under claimed copyright of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 60 83J5VANA argument 1 Tomato Music Works Limited? 2 MR. PERKINS: Yes, your Honor. 3 THE COURT: All right. 4 MR. PERKINS: And, as I mentioned, if the Court looks 5 at the consent judgment which is Exhibit 5 to my declaration in 6 paragraph 2 and the findings admitted by Tomato Music Works, 7 those 14 records -- 15 -- there are 15 that are listed but only 8 14 are part of the case, your Honor, are listed in the consent 9 judgment. And it is admitted therein that they were released 10 by Tomato Music Works and that they were released without the 11 proper license. And this is something, as I mentioned before, 12 that Mr. Eggers has conceded in his papers. 13 Instead, Mr. Eggers takes a different tack with 14 respect to the plaintiff's claim. He attacks the validity of 15 the copyrights and he does so based on the names of the 16 copyright claimants that are listed on the copyright 17 registrations. And, your Honor, the argument is without merit 18 because a copyright registration is not like a title to a house 19 or to a car. It is not a document of title. 20 For purposes of a copyright infringement litigation, a 21 copyright registration serves one purpose and one purpose only, 22 and that is to meet the requirement of Section 411 of The 23 Copyright Act which is a jurisdictional requirement. 24 This Court receives jurisdiction over a copyright 25 infringement claim solely when the work at issue is registered SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 61 83J5VANA argument 1 with the copyright office. The information that's listed in a 2 copyright registration is prima facie evidence of the 3 truthfulness of what's in there provided the registration has 4 been made within the first five years of creation of the work. 5 However, in most cases with valuable copyrights they are 6 assigned or family members are able to recapture them by 7 operation of the copyright law. Thus, the fact that there are 8 a variety of names on the copyright registrations in this case 9 is of no moment and Mr. Eggers has provided not a single case 10 to support the notion that -- 11 THE COURT: It is then plaintiff's burden to show that 12 through assignment they're the valid owners of the copyright. 13 MR. PERKINS: Absolutely, your Honor. And we contend 14 that we have done so. 15 With respect to the works that are owned by Jeanene 16 Van Zandt, we have attached the divorce decree. And, actually 17 Mr. Eggers has attached another document which is a further 18 assignment, it is Exhibit 5 to his declaration, both of which 19 confirm that Jeanene Van Zandt is the owner of all or half, 20 depending on the songs, of 125 separate compositions. And 21 there is no evidence to rebut that assignment. 22 With respect to the children, there are two issues at 23 play here. The first is the last will and testament. Anything 24 that had been owned by Mr. Van Zandt at the time of his death 25 went to the children by virtue of the last will and testament SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 62 83J5VANA argument 1 which is attached at Exhibit 2 of the Van Zandt declaration. 2 And, again, there is no dispute as to the validity of these two 3 documents, they are properly in evidence and Mr. Eggers has not 4 raised -- 5 THE COURT: How many songs are covered by the Jeanene 6 Van Zandt -- 7 MR. PERKINS: The Jeanene Van Zandt -- under the 8 divorce decree she owns 125 songs. Now not all of those songs 9 are at issue in this case but that's the total number that she 10 owns and they are listed out. 11 With respect to the kids, there are two ways in which 12 they were owning songs, which I mentioned the last will and 13 testament; the second by the provision of the Copyright Act 14 that Mr. Eggers argued earlier this morning which is when the 15 songs come up for renewal it is the kids, the heirs who have 16 the right to the renewal term copyright. 17 As the Court is aware, under the Predecessor Act, the 18 Copyright Act, under the 1909 Act, copyright was divided into 19 two terms of 28 years each. In order to gain the benefit of 20 the second term of copyright, the owner or in the event the 21 author had expired, the heirs of the creator were required to 22 file renewal copyrights. And that is what has been done. 23 If the Court will look at the collection of copyright 24 certificates that are the basis of plaintiff's motion in 25 Exhibit 3 to the Van Zandt declaration, virtually all of them SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 63 83J5VANA argument 1 are renewal copyright certificates. 2 So, the fact that Mr. Eggers has brought in other 3 copyright certificates that are not the basis of our motion or 4 that he points to other entities that are listed on the actual 5 registration certificates in this case is really, again, of no 6 moment. 7 I have gone through, in my reply brief, and broken 8 down at page 8 of my reply brief, the identity -- the claimant 9 identified in each of the certificates that are attached to our 10 motion and explained the basis for the chain of title that is 11 shown through the documents that have been provided on this 12 motion. 13 Again, the notion that a company called Jando Music 14 would be on one, or Honest to God Music would be on another, is 15 of no moment that one is in the name of Columbine, for example. 16 Again, Columbine no longer exists. That does not vitiate the 17 copyright nor does it do anything to ownership. All it does is 18 it begins the road of having to show chain of title. 19 So, your Honor, we believe that the documents are 20 crystal clear in this case that the chain of title is clear 21 that my clients are the owners of copyright on the songs at 22 issue and that they have standing to do so, to bring this 23 claim -- even if they are co-owners of copyright with another 24 person. That is not sufficient -- that gives them sufficient 25 standing to be plaintiffs in this case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 64 83J5VANA argument 1 The other argument that Mr. Eggers appears to make is 2 that he didn't -- he is not sufficiently involved in the 3 infringement in order to be liable, personally, for the 4 infringement. 5 And, your Honor, we have provided a fair amount of 6 case law both in our moving brief and our reply brief, but I 7 will go through the arguments. 8 Mr. Eggers is liable for vicarious copyright 9 infringement because he knew about the infringement and 10 materially contributed to it. We have now heard testimony in 11 this case, we have seen affidavits that he has offered in 12 response to the other side -- to the other defendant's motion 13 that he was in charge of day-to-day operations for Tomato Music 14 Works. He was an officer of Tomato Music Works. 15 Again, he was the CFO of that company, I believe, 16 or -- I'm sorry, CEO, until the end of 2004. He produced all 17 the records that are at issue. He admittedly exercised control 18 over Tomato Music Works and the failure to obtain mechanical 19 licenses. He was the one who was negotiating with the music 20 administrator in this case and that's outlined in his affidavit 21 at paragraph 29 as well as in the Exhibits 5 and 6 to the Van 22 Zandt declaration. All persons and corporations who 23 participate, exercise control over, or benefit from an 24 infringement are jointly and severally liable as copyright 25 infringers. That is horn book copyright law. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 65 83J5VANA argument 1 So, in this instance, your Honor, I think that there 2 is really -- there is no genuine issue of material fact here. 3 Mr. Eggers has not brought in any admissible evidence that 4 could excuse his behavior on this and with that, your Honor, I 5 will sit down. 6 THE COURT: I will hear Mr. Eggers. 7 MR. EGGERS: Your Honor I would like your permission 8 to make just a comment about the previous, just I would like to 9 just put on the record -- 10 THE COURT: No, I want to you move forward, not back. 11 I want you to address the claims of the Van Zandt plaintiffs 12 that -- 13 MR. EGGERS: Will I have a change to -- will I have 14 a -- 15 THE COURT: -- with respect to the Tomato Music Works 16 Limited albums that were released from 2001 to 2005. So, 17 please, direct your attention to that. 18 MR. EGGERS: Okay. Can I have an opportunity later, 19 hopefully, to speak on something else? 20 First there is a fundamental issue of the copyrights 21 themselves. Jeanene Van Zandt, as the plaintiffs have stated, 22 claims the renewal rights to a vast majority of the disputed 23 copyrights that they claim were infringed. She has no standing 24 in those copyrights. She obtained them under illegal means. 25 In a misguided attempt to gain benefit for herself SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 66 83J5VANA argument 1 Jeanene Van Zandt, instead of registering the copyrights in the 2 names of the rightful heirs at the time of the registration 3 renewals were due two of the Van Zandt children were minors, 4 one of the children was an adult. Instead, she registered the 5 renewals in her own name. Okay? Even a cursory review of the 6 motion record and documents produced in discovery show that 7 Jeanene Van Zandt's renewal registrations were not in 8 conformity with copyright law. 9 False statements on numerous copyrights state she was 10 the widow or she was the executrix. If a writer dies prior to 11 the time of renewal of registrations, all agreements including 12 the joint confirmation of ownership agreement of granting 13 rights of renewal rights, divorce decrees, divorce settlements, 14 wills, are extinguished by operation of law. Only the rightful 15 heirs, three children could apply for renewal under the Townes 16 Van Zandt compositions during the last year of the original 17 term. 18 The law: I am citing the case law of McArthur v. 19 Goodman Music Group Publishers, Southern District Court, New 20 York. When children of deceased composers do not apply for 21 renewal of copyright composition during the last year's 22 original term, compositions enter into the public domain. 23 And I have this to give to the Court. 24 So, the vast majority of these songs are presently in 25 the public domain. The children -- and Mr. Perkins state SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 67 83J5VANA argument 1 obviously there is a serious difference between Mr. Perkins' 2 generalization that it doesn't matter whose name is on the 3 copyright. It does matter whose name is on the copyright. The 4 children, if the children should be listed either as Jeanene 5 Van Zandt, their mother as trustee for the two children or John 6 Townes Van Zandt, Jr. should be on the copyright. No other 7 name should be appearing on any of the renewals after the 8 artist died. She had no right to put those copyrights in her 9 name. And, in doing so, she put the copyrights not only in 10 jeopardy but the very highly likely possibility that they are 11 no longer valid copyrights but are in public domain. 12 And I would like to continue. 13 A letter from ASCAP, which is my Exhibit 9 in my 14 further opposition, is a letter from 2003 from the American 15 Society of Composers and Authors advising the three children 16 that an extensive list of copyrights are up for renewal. 17 At no time in the certificates are there any renewals 18 of these songs into the children's name, they're all in 19 Jeanene's who had no standing. She violated copyright law by 20 taking those copyrights in her own name. They had to be in the 21 name of the children. This generalization that he could put, 22 make a list of any entity on the copyright and the underlying 23 agreements that he is relying on for renewal rights have no 24 standing because the renewal rights are not available to 25 Jeanene Van Zandt. They're only available to the three SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 68 83J5VANA argument 1 children and that is set copyright law. 2 And in the letter which is dated April 22nd, 2003: 3 Dear member, This is the -- 4 (Reporter clarification) 5 MR. EGGERS: The letter is dated April 22nd, 2003: 6 This is the -- 7 (Reporter clarification) 8 THE COURT: Slow down, Mr. Eggers. Slow down. 9 MR. EGGERS: This is from the ASCAP dated April 22nd, 10 2003. It goes to the members. The members listed are J.T.V.C. 11 Music which is John Townes Van Zandt, Jr.; Katie Belle Music, 12 who is the minor, still a minor which is the daughter; and Van 13 Zandt -- Will Van Zandt Publishing, care of Bug Music. 14 The letter refers to, and it says, Dear member. The 15 heading on the letter is renewal term of copyright claim. 16 Copyrights had to be put in the name of the children. 17 If they did not, under copyright law, they lost. And they have 18 lost them because of this woman's neglect. And I feel badly 19 for the children. 20 He states in the letter, and I will just do the first 21 paragraph: Dear member: This is the further to the EMI 22 publishing letter dated December 19th, 2002, which they 23 relinquish the Townes Van Zandt interest for the territory of 24 the United States. 25 Mr. Perkins is only trying to claim copyright SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 69 83J5VANA argument 1 infringement for the United States, no other territories. They 2 don't have the copyrights in the United States. And then it 3 goes on to explain why. 4 Attached to that letter is an extensive list of all 5 the songs that were up for renewal -- all up for renewal after 6 the death of Townes Van Zandt which means they could not be 7 registered in the name of Jeanene Van Zandt and it had to be 8 put in the children's name. And all this nonsense about 9 being -- that was just a deception on the copyright and she was 10 the widow or executrix. These copyrights belong to these three 11 individuals and nobody else. And, as I said and you have the 12 case law, that they have within a year -- the last year in the 13 first term of the copyright to renew those copyrights. And if 14 they don't, they go into public domain. 15 That's one issue that I would like to raise. 16 And I say neither the children nor their guardian 17 filed the renewals on their behalf. In the copyrights 18 submitted by the plaintiffs there are only two copyrights which 19 are disputed by me under the name of the children. All these 20 should be in the name of the children at this point with very 21 few exceptions. 22 And I would also like to point out Mr. Perkins' 23 assertion that it doesn't matter if it is in Jando Music or it 24 says Honest to God Music -- it does. If those are the 25 companies that diverted copyrights that belong to me and that SOUTHERN DISTRICT REPORTERS, P.C.