Strick Motion

8/6/2019 Strick Motion

1/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 1 -

PLAINTIFFS MEMORANDUM OF POINTS AND

AUTHORITIES IN OPPOSITION TO DEFENDANTS CV 11-04043-CBM (Ex)MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS

EDWARD C.GREENBERG 1184217 (NY)[email protected] C. Greenberg, LLC.570 Lexington Avenue, 17th FloorNew York, NY 10022Telephone: (212) 697-8777

THOMAS M. REGELE, Esq. (SBN 089865)KAREN MOSKOWITZ, Esq. (SBN 109681)[email protected] Wilshire Blvd., Suite 1250Beverly Hills, California 90212Telephone: (310) 203-0808Facsimile: (310) 282-9101

Attorneys for PlaintiffDavid Strick

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DAVID STRICK, an individual

Plaintiff,

vs.

LOS ANGELES TIMESCOMMUNICATIONS LLC d/b/aLATIMES.COM; and TRIBUNECOMPANY, a DelawareCorporation

Defendants.

Case No: CV 11-04043-CBM (Ex)

Assigned to the Hon. Consuelo B.

Marshall

PLAINTIFFS MEMORANDUM OFPOINTS AND AUTHORITIES INOPPOSITION TO DEFENDANTSMOTION TO COMPELARBITRATION AND STAYPROCEEDINGS; SUPPORTINGDECLARATIONS OF RICHARDRUSHFIELD, DAVID STRICK ANDKAREN MOSKOWITZ; AND,

EXHIBITS A THROUGH K

Hearing Date: August 1, 2011Time: 11:00 AMCourtroom: 2

Action Filed: May 11, 2011

Case 2:11-cv-04043-CBM -E Document 17 Filed 07/11/11 Page 1 of 18 Page ID #:469


2/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 2 -



MEMORANDUM OF POINTS AND AUTHORITIES

I. SUMMARY OF FACTSA.Plaintiffs BackgroundPlaintiff David Strick (Strick) has worked as a professional photographer

since the early 1970s, doing a range of work from portrait to documentary

photography. His clients have included Vanity Fair, Time Magazine, Newsweek,

Sports Illustrated, The New York Times Magazine, Business Week, and Forbes,

among others. Over time, Strick increasingly specialized in a form of candid,

documentary-style, behind-the-scenes 35mm photography of the entertainment

industry that was first most notably featured in hisbook Our Hollywood,

published in 1988 by The Atlantic Monthly Press. (Strick Decl. 2). Strick has

been referred to as the closest thing Hollywood has to an industry photographer and

he is frequently given special and unique behind-the-scenes access to television and

movie sets, where he captures the often poignant interplay between the reality of

the filmmaking process and the fantasy of the film experience, in what Strick calls

Hollywoods industrial magic. Strick gives film fans, critics and industry

insiders alike their first look at the stars and crew actually filming upcoming

television productions and movies, all of which has created a photography brand

both distinctive and highly respected. (Complaint 17-18; Rushfield Decl. 2).

In the mid-1990s, Strick began an 11 year relationship with Premiere

Magazine, originating and photographing multi-page features as well as a monthly

photo column that was first entitled The Martini (named for the last shot of the

day on theatrical productions) and subsequently called David Stricks

Hollywood. After Premiere folded in 2007, Strick created a proposal for a

photography feature that would cover the production of movies, television,

advertising and music videos, and would appear both in print and on the web, and



3/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 3 -



began discussions with publishing outlets including Entertainment Weekly, Yahoo

and The Los Angeles Times regarding the possible implementation of his

idea. Strick worked out an independent contractor arrangement with Defendant Los

Angeles Times (the Times), and 2 years later when his agreement with the

Times terminated, he began a similar web/print photo feature for The Hollywood

Reporter, where his work can currently be viewed on a regular basis both in print

and online. (Strick Decl. 2).

B.Stricks Agreement with LA Times.comIn February 2007, Strick made a detailed proposal for an original, online,

behind-the-scenes Hollywood photography feature to Rob Barrett, General

Manager of LA Times.com, who in turn referred him to Richard Rushfield, then

Entertainment Editor for the LA Times.com, who was overseeing the creation of

the website and who negotiated with Strick for the feature eventually known as

David Stricks Hollywood Backlot, a unique photo gallery of Stricks original

and archival work that ran on the Times website and in print in the Times

Calendar section and in its Sunday Magazine. (Strick Decl. 3; Rushfield Decl.2-

3). The Backlot feature debuted with an enormously successful launch in May

2008. Traffic for the first gallery (also referred to as story) for the upcoming

motion picture Twilight was at such a high volume that the site crashed. Web

traffic continued to be solid for the duration of the feature, typically in the range of

200,000 page views per month, and the feature was eventually included as a regular

gallery in dozens of additional Tribune owned properties throughout the United

States. (Strick Decl.14).

The first of three roll-over Archive License and Services Agreements was

signed by Strick and the LA Times in December 2007. (Rushfield Decl. 4, Exh.

A; Strick Decl9). Pertinent to the issue before this Court, in each of his

agreements with the Times, Strick unequivocally retained his copyright to all



4/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 4 -



original and archival photographs, worked entirely independent of any supervision,

direction or editorial control and was at all times the originator as well as the

creator of his work. (Strick Decl 5-6; Rushfield Decl.5-6). As Rushfield attests

to in his supporting Declaration: It was a clear understanding of the parties, stated

expressly and unequivocally in the agreement, that David would at all time retain

the copyright in and to his photographs and that, if and when the deal was

terminated . . . all rights licensed to the Times pursuant to the agreement, except for

those few expressly reserved, would revert back to David and all of his original

and archival work would be removed from the website. I recall we discussed how

the Times would take down his work from websites and remove the images from

the Times database, among other things. These points were of considerable

importance to David and an expressly negotiated condition of his participating in

and lending his name to the Backlot feature. (Rushfield Decl.5, emphasis added).

Rushfield goes on to confirm at Paragraph 6 of his Declaration: The use of the

words commission and assignment in the cover memorandum and Original

Agreement are a bit misleading, as there was no commissioned or assigned work

per se under the Original Agreement. I do not recall a single instance where I or

anyone else to my knowledge gave David an assignment. David was brought in

specifically because of his years of work at Premiere and other entertainment

publications, as well as his book Our Hollywood, which depicted unique behind-

the- scenes on-set photography. . . David brought with him many years of

professional contacts and a long track record of coming up with his own stories. A

large part of Davids value as a photographer was that he had the ability to do an

unusual range of entertainment stories without editorial or logistical support. . .

(See, also, Strick Decl. 11).

As important, the limited license under the Grant of Rights section of the

agreement, as to original work taken during the term of the contract, only extended



5/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 5 -



to those images (pictures) that were accepted for publication as agreed upon with

your editor. The clear intent and mutual understanding of the parties at the time

the agreement was negotiated was that the Times was not getting a broad license

to publish any and all pictures taken by David during the term of the contract, but

only a limited license to publish those images (pictures) that were actually accepted

for publication and published either online or in print. (Rushfield Decl. 8; Strick

Decl. 20). In other word, and contrary to the strained interpretation of this

operative phrase in Defendants moving papers, the simple act of delivering digital

files to the Times digital holding area (known as the ftp site) for storage and

safekeeping is not acceptance and, by the plain meaning of the contract and intent

of the parties, the Times could not unilaterally accept anything. Stricks active

engagement was essential as the publication of the Backlot feature was a

collaborative process with his editor: In my experience, including my experience

at the Times, only the work of staff photographers, or what is referred to generally

as work for hire, which David was emphatically not, would be automatically

owned and controlled by the publisher or employer. David was at all times an

independent contractor, who retained ownership and control of his copyright and

intellectual property. Further, as agreed upon with your editor in Davids case

meant just that: No images would be accepted for publication or published before a

collaborative process between David and a producer employed to work with him by

The Times that typically occurred within days of the publication of the images and

the release of the film or other theatrical production. Davids affirmative

engagement was essential to any publication of his work.. (Rushfield Decl.9).

C.Termination ofStricks Contract And Subsequent, DeliberateInfringements Of His Copyrights

The final Archive License and Service Agreement dated January 1, 2010

(Agreement) was signed by Strick but never executed by the Times. (Strick Decl.



6/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 6 -



19, Exb. B). On May 29, 2010 Strick received notice that his contract would not

be renewed and his services no longer required as of June 2010. (Strick Decl. 21).

Having fulfilled his contractual obligations for the six month period of the final

contract (January through June 2010), Strick asked the Times, among other things,

to delete from its ftp storage site 10 stories that were candidates for eventual

publication in the event his contract was renewed beyond June 2010 (and that could

only run after that date given the expected release dates of the movies) as the

galleries remained his sole intellectual property and the Times had no permission or

license for their use. (Strick Decl.22). The Times refused and months of

frustrating, time consuming negotiations ensued with the Times inventing new and

varied claims and cross-claims against Strick in the process. (Moskowitz Decl 2,

6). Stricks efforts at obtaining a non-judicial intervention of his dispute, including

by discussing mediation as an alternative dispute mechanism, failed and eventually

the Times won the war of attrition and Strick walked away without the Times

having deleted his by then registered copyrighted images from its digital storage.

(Moskowitz Decl. 3; Strick Decl. 29).

Beginning in December 2010, the Times and dozens of Tribune owned and

operated websites began infringing on Stricks copyrights. Every one of the images

that are the subject of Stricks claims in this action were uploaded to the Times

ftp site but never accepted for publication or published and are therefore

entirely outside the scope of the January 1, 2010 Agreement. (Strick Decl. 30

38). The Times has offered no evidence to the contrary in its moving papers. The

only competent evidence introduced by the Times was that Strick was paid for his

services during the contract term January through June 2010 (never disputed) and

that the Agreement contains an arbitration clause (again, not disputed). Strick

completely delivered, in fact over delivered, work and services for the final contract

period (Strick Decl. 37) and the copyrighted images that are the subject herein are



7/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 7 -



demonstrably outside the contract terms. This dispute should properly be

adjudicated in Federal Court and Defendants Petition to Compel Arbitration denied.

II. THE DISPUTE DOES NOT FALL WITHIN THE SCOPE OF THEPARTIES ARBITRATION AGREEMENT

A.This Court Must Decide All Arbitrability Disputes As The Parties DidNot Clearly And Unmistakably State That It Was Their Intent To

Submit This Threshold Issue to The Arbitrator

Because gateway issues of arbitrability would otherwise fall within the

province of judicial review, a more rigorous, heightened standard applies in

determining whether the parties have agreed to arbitrate the question of

arbitrability. The question is an issue for judicial determination [u]nless the parties

clearly and unmistakably provide otherwise.AT & T Techs., Inc. v.

Communication Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648

(1986) (AT & T Techs., Inc.); First Options of Chicago, Inc. v. Kaplan, 514 U.S.

938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (First Options.). In other words,

it is assumed that the parties agreed that arbitrability issues are to be decided by the

court unless the moving party proves that the contract language is sufficiently clear

and unmistakable to constitute a submission of threshold issues of arbitrability to

the arbitrator. (AT & T Techs., Inc., supra, at 649.) The Supreme Court has

cautioned that it is not enough that ordinary rules of contract interpretation simply

yield the result that arbitrators have the power to decide their own jurisdiction.

Rather the result must be clear and unmistakable, because the law is solicitous of

the parties actuallyfocusing on the issue. First Options, supra, 514 U. S. at pp.

944-945, 115 S.Ct. 1920. Hence, silence or ambiguity is not enough.Id.

Defendants have failed to meet their burden of proving that the parties clearly

and unmistakably agreed to arbitrate questions of arbitrability. Notably, the



8/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 8 -



Agreement does notcontain any explicit language providing that the arbitrator is to

decide all threshold arbitrability issues. Nevertheless, Defendants contend that the

following language in the 2010 Agreement was sufficient to clearly and

unmistakably provide that the arbitrator would have jurisdiction to decide his/her

own jurisdiction:

any and all claims, disputes or controversies between Plaintiff and

The Times shall be resolved through mediation and binding

arbitration in accordance with the most appropriate JAMS

mediation/arbitration rules in effect at the time of delivery of the

claim. The rules are incorporated by reference. (Compl., Exh. D

III.6(b).

Defendants reason that by incorporating JAMS rules by reference, some of

which presently contain a rule specifying that the arbitrator shall have the

power to determine jurisdiction and arbitrability issues (e.g., JAMS

Comprehensive Rules and Procedures, Rule 11(c)), the parties clearly

expressed their intention to accord the arbitrator the authority to determine

this issue. Defendants reasoning is faulty for at least three reasons.

First, the cited incorporation language is hopelessly vague and

ambiguous as to the phrase most appropriate. Rather than specifying

exactly which JAMS Rules are being incorporated, it refers merely to the

most appropriate rules. Which JAMS Rules, among the multiple types and

numerous rules within each type, are most appropriate? The Agreement

does not say and the parties never focused on this issue in their discussion

leading up to the subject agreements. (Moskowitz Decl 10; Strick Decl. 7).

The default position on who decides arbitrability issues is undeniably a

matter for judges, not arbitrators.AT & T, supra, 475 U.S. at pp. 648-649,

106 S.Ct. 1415. It is reasonable to assume, therefore, that the parties intended



9/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 9 -



that any JAMS Rule that would empower the arbitrator to determine her own

jurisdiction (such as the current Rule 11(c)), would notbe appropriate, as

such arbitrability issues are normally and reasonably the province of the

court. Id. Certainly, Plaintiff did not intend to vest power in the arbitrator to

decide arbitrability issues. (Strick Decl., 7). Accordingly, at a minimum,

there was no meeting of the minds on this term.

Second, rather than incorporating existing rules, the language refers to

rules in thefuture - those in existence at the time a claim is delivered. Who is

to say what JAMS Rules might exist in the future when they are amended

from time to time? Rule 11(c) might or might not exist. Incorporating future

unspecified, most appropriate rules fails to even meet the basic

requirements for a valid incorporation by reference under Californias

contract law. To have a valid incorporation by reference, the document being

incorporated must actually exist at the time of incorporation so the parties

can know exactly what they are incorporating. (SeeIn re Plumels Estate

(1907) 151 Cal. 77, 80.) To go beyond existing rules and allow for the

incorporation of afuture unspecified rules, is not the kind of clear and

unmistakable language that First Options requires.

Third, the conclusion that the parties to the Agreement did not clearly

and unmistakably intend to allow the arbitrator to determine arbitrability

issues is further supported by the fact that the parties carved out a number of

matters that are not subject to arbitration. The Agreement provides that the

parties may seek, from a court of competent jurisdiction, provisional

remedies or injunctive relief in support of their respective rights and

remedies hereunder (Compl., Exh. D, Agreement III.6(e)) (emphasis

added.) Plaintiff seeks injunctive relief as part of his statutory remedies in

cause of action one through four for copyright infringement. Thus, although



10/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 10 -



one paragraph in the Agreement says that all claims and disputes are to be

arbitrated, another provision indicates that the courts are the appropriate

forum for some disputes, including the injunctive relief that Plaintiff seeks

herein. When an agreement is ambiguous, the court and not the arbitrator

should decide arbitrability so as not to force unwilling parties to submit a

matter they reasonably thought a judge, not an arbitrator would decide. First

Options, supra, 514 U.S. at p. 945;Hartley v. Superior Court(2011) ---Cal.

Rptr.3d ---, 2011 WL 2535582 (Cal.App. 4 Dist.), *6.

Defendants cited authorities are not persuasive.Dream Theater, Inc. v.

Dream Theater(2004) 124 Cal.App.4th

547,Bank of Am., N.A. v. Micheletti

Family Pship, No. 08-02902 JSW, 2008 U.S. Dist. LEXIS 117100 (N.D.

Cal. Oct. 14, 2008), and Contec Corp. v. Remote Solution Co., 398 F.3d 205,

208 (2nd

Cir. 2005) all involved broad, all-inclusive and unambiguous

arbitration agreements and all involved incorporation ofexisting (not future)

arbitration rules which were clearly identifiable (not amorphously referred as

those most appropriate.) In those cases, unlike here, the parties could look

up the arbitration rules to which they were agreeing beforehand and

determine that they were conferring on the arbitrators the power to determine

threshold arbitrability issues.

More instructive are Gilbert Street Developers, LLC v. La Quinta

Homes, LLC(2009) 174 Cal.App.4th

1185, 1190-1194, where the court held

that an arbitration provision incorporating the AAA rules existing at the date

of arbitration (as opposedto those that actually existed as of the date of the

agreement was signed)was not a clear and unmistakable delegation of

authority to the arbitrator to decide arbitrability issues; James & Jackson,

LLC v. Willie Gary, LLC(Del.2006) 906 A.2d 76, 78, 8081 (court, not

arbitrator, decides arbitrability issue where arbitration clause incorporates



11/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 11 -



AAA rules but also provides that non-breaching party may seek injunctive

relief and specific performance in court); and Katz v. Feinberg (2d Cir.

2002) 290 F.3d 95, 9697 (despite incorporation of AAA rules, court, not

arbitrator, decides arbitrability issue where purchase agreement ambiguously

contains both a broadly wordedarbitration clause and a specific clause

vesting accountants with sole authority to determine purchase price.)

In sum, because the provisions in the Agreement: (1) ambiguously and

invalidly incorporate future, unspecified JAMS Rules, which may or may not

include an arbitrators right to determine arbitrability issues; and (2) provide

that a party may seek provisional remedies and injunctive relief in court,

which Plaintiff seeks herein, the parties did not clearly and unmistakably

agree that the arbitrator would have jurisdiction to decide arbitrability issues.

Accordingly, this Court should decide all arbitrability issues in the first

instance.

B.There Is No Reasonable Interpretation Of the Agreement ThatWould Encompass The Subject Copyright Infringements,

Occurring Months After Defendant LA Times Terminated the

Contract

In cases subject to the Federal Arbitration Act, courts apply ordinary state

law contract principles in deciding whether the parties agreed to arbitrate a

particular dispute. First Options of Chicago, Inc. v. Kaplan (1995) 514 US 938,

944; 115 S.Ct. 1920, 1924; Wagner v. Stratton Oakmont, Inc. (9th Cir. 1996) 83

F3d 1046, 1049.

In determining what disputes are subject to arbitration, under California law,

the contract should be read as a whole and are to be interpreted to give effect to the

mutual intention of the parties at the time of contracting, so far as the same is

ascertainable and lawful. Cal. Civil Code 1638, 1648; Waller v Truck Ins.



12/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 12 -



Exchange (1995), 11 Cal.4th 1. Agreements to arbitrate are no different:

[A]rbitration is a matter of contract and a party cannot be required to submit to

arbitration any dispute which he has not agreed so to submit. United Steelworkers

of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, (1960).

Accordingly, the determination of what disputes are arbitrable is similarly focused

on the intent of the parties. See, AT & T Techs., Inc.v. Communication

Workers, 475 U.S. 643, 648-49, (1986).

Here, the intent of the parties is manifest as to what constituted accepted for

publication as agreed upon with your editor. (Rushfield Decl. 9; Strick12, 20).

Despite the efforts of Defendants to create a fictitious narrative wherein the Times

instructed and directed Strick regarding the work he did, seizing on words such as

commissioned and assign to create the impression of a staff photographer doing

work for hire during a certain term , the unambiguous and uncontroverted facts are

that Strick contracted with the Times to deliver a photography feature consisting of

a certain minimum number of image galleries per month, with a certain number of

minimum images per gallery, and he more than fulfilled his end of the bargain.

Defendants are attempting to capitalize on the fact that Strick uploaded digital files

months in advance of publication, dictated by the production and release dates of

the movies he photographed, in anticipation of his contract being renewed.

Conflating delivery with acceptance and possession with ownership, Defendants

simply want something of value for nothing.

And, however broad the wording, an arbitration clause does not and cannot

apply to disputes unrelated to matters covered by the contract.Lawrence v. Walzer

& Gabrielson (1989) 207 Cal.App.3d 1501, 1506.

III. THE RIGHT TO COMPEL ARBITRATION, IF APPLICABLE,SHOULD NOT APPLY TO TRIBUNE COMPANY.

Tribune Company is neither a party nor a signatory to the Agreement. A



13/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 13 -



non-signatory to an agreement can only invoke the rights of the agreement and a

right to compel arbitration if the claims against it are inextricably intertwined and

inherently inseparable from those against a signatory to the agreement, or similarly

based on a theory of equitable estoppel (See, Goldman v. KPMG, LLP, 173 Cal.

App. 4th 209, 218 (Cal. App. 2d Dist. 2009);Molecular Analytical Systems v.

Ciphergen Biosystems, Inc., 186 Cal. App. 4th 696, 715 (Cal. App. 6th Dist. 2010) ;

Amisil Holdings Ltd. v. Clarium Capital Mgmt. LLC, 622 F. Supp. 2d 825, 830

(N.D. Cal. 2007)). As shown below, Tribune cannot enforce the right to compel

arbitration under the Agreement between Plaintiff and the LA Times under either

situation.1

A. Neither Tribune, Nor LA Times, Was A Signatory To TheAgreement.

Preliminarily and notably, the January 1, 2010 Agreement was never fully

executed, and never signed by the LA Times. Thus, Tribune makes a novel attempt

to seek the benefits of an agreement never even signed by its subsidiary, LA Times.

Defendants have not cited to any authority holding that a non-signatory to an

arbitration agreement can compel a purported party to an unexecuted arbitration

agreement to arbitrate its claims against the non-signatory, especially when the

unexecuted agreement concerns copyrights and licensing arrangements where the

United States Constitution and Federal statutes mandate that the intent of the parties

be unambiguous, clear and manifest. For that reason alone, Tribune does not have

standing and cannot compel Strick to arbitrate his claims.

///

///

1As a non-signatory demanding arbitration, Tribunes status is first determined bythis Court, not an arbitrator. See, e.g., Carpenters 46 No. Calif. CountiesConference Bd. v. Zcon Builders (9th Cir. 1996) 96 F.3d 410, 414 (court mustdecide whether nonsignatory has standing to arbitrate);American Builder's Ass'n v.

AuYang (1990) 226 Cal.App.3d 170, 179 (same).



14/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 14 -



B.The Claims Against Tribune And LA Times Arise Independent OfThe Unexecuted Agreement And Are Neither Identical Nor

Inextricably Intertwined With Each Other; Rather, They Are

Separate And Distinct.

The case law relied upon by Defendants (Motion, pp. 13-14) presupposes

that the claims against both the non-signatory and signatory are based on the

agreement containing the arbitration clause, have identical factual allegations, and

are inherently inseparable. Here, none of these predicates, let alone all three, is

present.

First, as explained in Section II, supra, Stricks claims against LA Times and

Tribune do not arise from, and are outside of, the scope of the arbitration

agreement. Simply put, the contemplated license and scope of the Agreement

pertains only to those images accepted for publication or published by

LATIMES.COM as agreed upon with your editor. Such images are neither in

dispute, nor the subject of this action. (See 37 of the Strick Declaration for a

description of the photo galleries that were licensed to the Times during the term of

his last agreement, none of which images are at issue in this action). It is other

specifically identified photographsby Strick, which were not accepted for

publication or published by LATIMES during the term of the Agreement which

are the subject of this lawsuit. (Rushfield Decl. 8-9; Strick Decl. 12, 20, 30-36.

38, 40). These subject images were outside the scope of the Agreement and thus

not subject to the terms therein, including Section III.6 (Arbitration). See,

Mundi v. Union Sec. Life Ins. Co., 555 F.3d 1042 (9th Cir. Cal. 2009) (holding that

the District Court properly denied defendants motion to compel arbitration because

the claims were outside the scope of the arbitration provision); Goldman v. KPMG,

LLP, 173 Cal. App. 4th 209, 230 ( 2009) (denying defendants motion to compel

arbitration because the claims were not founded in or inextricably bound up with,



15/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 15 -



the terms of the operating agreement.) It does not follow that because Strick

merely mentions the Agreement in the complaint, the claims are founded in,

dependent upon or inextricably intertwined with the Agreement. See, e.g., Positive

Software Solutions, Inc v. New Century Mortg. Corp., 259 F.Supp.2d 531, 540

(N.D. Tex 2003). Stricks claims against Tribune are soundly based upon rights

granted and guaranteed by the United States Constitution and Federal Statutes.

Defendants inaccurately suggest (Motion, p. 14) that Plaintiff is attempting to

play fast and loose with its commitment to arbitrate, honoring it when

advantageous and circumventing it to gain undue advantage. Quite to the

contrary, Plaintiff here never agreed to arbitrate over issues concerning the images

which are the subject of this litigation and wholly outside the scope of the

arbitration provisions. It is fundamental that the public policy favoring arbitration

does not apply to disputes the parties have not agreed to arbitrate (See,AT&T

Techs. v. Communs. Workers of Am., supra, 475 U.S. at 648;Engineers &

Architects Assn. v. Community Development Dept. (1994)30 Cal.App.4th 644, 652-

653. Under these circumstances, the equitable estoppels doctrine does not apply.

Second, the claims against Tribune and LA Times are based on separate

and distinctfactual allegations. While Strick alleges that LA Times unlawfully

published numerous of Plaintiffs images to the LA Times website without

Plaintiffs license, authorization, or consent, he separately avers that Tribune itself

wrongfully published hundreds of Stricks images to websites that the Tribune, not

LA Times, owns and controls, inter alia, KTLA-TV (CW) Los Angeles

(www.ktla.com), KSWB-TV (FOX) San Diego (www.fox5sandiego.com), WPHL-

TV (MY) Philadelphia (www.myphl17.com), KTXL-TV(FOX) Sacramento

(www.fox40.com), WGN-TV (CW) Chicago (www.WGNtv.com), CLTV

Chicagoland Television 24-Hour News (www.CLTV.com), WCCT-TV (CW)

Hartford (www.ct.com), ddd, 5 news, wgn, Sun Sentinel (www.SunSentinel.com),



16/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 16 -



Daily Press (www.DailyPress.com), The Morning Call (www.mcall.com), and

many others, in violation of his Constitutional and statutorily granted rights. 17

U.S.C. 501 et seq., The Copyright Act. (Complt., 62-78; Strick Decl., 30

- 36). In short, this is not a case where the parent company is named in the claims

based upon misconduct solely committed by its subsidiary under a vicarious

liability theory, agency allegation or the like, but rather, the parent company itself,

separately and independently, violated Stricks copyrights.

Third, Stricks claims against Tribune are separate and distinct from his

claims against LA Times. Under Copyright Law, each infringement of a separate

image, and each infringement by a separate infringer, constitutes a separate and

distinct infringement (see, 17 U.S.C. 501; 504(c); Microsoft Corp. v. Evans,

2007 U.S. Dist. LEXIS 77088, 16-17 (E.D. Cal. Oct. 16, 2007); Playboy Enters. v.

Sanfilippo, 1998 U.S. Dist. LEXIS 5125 (S.D. Cal. Mar. 24, 1998)). Thus, each

infringement by Tribune on websites other than the LA Times website constitutes

an infringement separate and distinct from those claimed against LA Times (Id.).

Here, if Strick had no claims against LA Times, then he would still have claims

against Tribune as such claims involve separate and independent infringements of

Plaintiffs copyrighted images. (Complt., First and Second Claims for Relief for

Copyright Infringement under 17 U.S.C. 501, et seq. of the Copyright Act.)

Defendants reliance on Fujian Pac. Elec. Co. v. Bechtel Power Corp., 2004

U.S. Dist. LEXIS 23472 (N.D. Cal. Nov. 18, 2004), which held that a non-

signatory parent may enforce the arbitration clause of an agreement executed by its

subsidiary if failure to do so would render the arbitration proceedings with the

subsidiary meaningless, is misplaced. Here, if Strick proceeded in litigation against

Tribune, such would not affect an arbitration (if such were to occur) between

Plaintiff and LA Times, as his claims against Tribune are separate and distinct, and

stand on their own merit, from those as against LA Times. See,Mundi v. Union



17/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 17 -



Security Life Ins. Co., 555 F.3d 1042, 1047 (9th

Cir. 2009); Goldman v. KPMG,

LLP, supra, 173 Cal.App.4th at 230;Jones v. Jacobson (2011) 195 Cal. App. 4th

1, 20- all finding that plaintiffs claims were not inextricably intertwined with or

inherently inseparable from the agreement containing the arbitration provisions.

For the many foregoing reasons, Plaintiff respectfully requests that if the

Court grants defendant LA Times motion to compel arbitration, it should deny

same with respect to Tribune, allowing Plaintiff to continue to litigate as against

Tribune and exercise its discretion to stay any arbitration proceedings with the LA

Times until such time as the Federal case against Tribune has resolved through

judgment or otherwise.

IV. CONCLUSIONPredating the Bill of Rights, the framers we so concerned with the rights of

creators and their effect on society that at Article I, Sec. 8. Clause 8 of the United

States Constitution, they provided for such rights lest they be left to less substantial

documents by inserting, To promote the Progress of Science and useful Arts, by

securing for limited times to Authors and Inventors the exclusive Right to their

respective Writings and Discoveries. This right to secure a copyright is so central

that it cannot be transferred, abrogated, waived or assigned except under very

limited and specific, written conditions. The Copyright Act, USC Title 17, further

specifies the rights and remedies available to creators as Congress has deemed

appropriate time and again over the centuries.

It is axiomatic that Federal Courts have exclusive jurisdiction over any civil

matter arising under copyrights (28 U.S.C.S. 1338: Vestron, Inc. v. Home Box

Office Inc., 839 F.2d 1380, 1381 (9th Cir. 1988).

It is undisputed that Strick was the creator of and holds the copyrights in the

subject images in this action. Rights granted by the Constitution are not easily or

casually waived. In order for a copyright holder to validly and exclusively license



18/18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 18 -


AUTHORITIES IN OPPOSITION TO DEFENDANTS CV 11-04043-CBM (Ex)

his work to another, his intent must be clearly and manifestly memorialized in an

unambiguous writing (17 U.S.C. 204; Konigsberg Int'l v. Rice, 16 F.3d 355, 356-

357 (9th Cir. Cal. 1994); Bieg v. Hovnanian Enterprises, Inc. 157 F.Supp.2d 475

480 (E.D. Penn 2001). The reasoning is clear; the writing must be clear, specific

and unambiguous to ensure both that the copyright holder does not give away his

work and property rights inadvertently and that the parties understand precisely

what they are bargaining for and describe the bounds of intangible rights that

cannot be seen or felt.

Here, there is no clear and manifest expression of intent on the part of Strick

to license his copyrights. Plaintiff should be entitled to litigate his important

property rights in this Court, and Defendants Motion to Compel should be denied.

Respectfully Submitted on July 11, 2011.

Edward C. Greenberg, LLC.

EDWARD C.GREENBERG

THOMAS M. REGELEKAREN MOSKOWITZ

By:_____________/s/_______________Karen Moskowitz, Esq

Attorneys for PlaintiffDAVID STRICK


Date post:	07-Apr-2018
Category:	Documents
Upload:	sharonwaxman
View:	223 times
Download:	0 times

Strick Motion

Documents