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UNITED STATES TAX COURT - TRIAL

ESTATE (OF MICHAEL J. JACKSON DECEASED)

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EXECUTORS: JOHN G. BRANCA. AND JOHN MCCLAIN

COMMISSIONER OF INTERNAL REVENUE (IRS)

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February 1th 2017

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Presiding Judge Mark V. Holmes

Jacksons estate is represented by Avram Salkin, Charles Paul Rettig, Steven Richard Toscher, R
obert S. Horwitz, Edward M. Robbins Jr., Sharyn M. Fisk and Lacey E. Strachan of Hochman Sa

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lkin Rettig Toscher & Perez PC, Paul Gordon Hoffman, Jeryll S. Cohen and Loretta Siciliano of
Hoffman Sabban & Watenmaker and Howard L. Weitzman of Kinsella Weitzman Iser Kump &
Aldisert LLP. ae
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IRS is represented by its attorneys Donna F. Herbert, Malone Camp, Sebastian Voth, Jordan Mus
en and Laura Mullin.
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--------------------------------------------
MARK ROSSLER
Celebrity valuation
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Judge Holmes:. Do you have any exhibit to talk about? Did you discover if that's exchanged or
not?

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Mr. Camp: No, your Honor. We did not receive this exhibit. We ... the probate documents that
we received and exchanged with the petitioner, we received from the California Attorney

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General's Office. And I went and I looked by date, and we received the document on January
2012, and then the next one was on March of 2012. And I can tell there was a ... the California
Attorney General Bates stamp their documents, and there's a gap in the Bates stamp. So what it

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was is we never received all of the sealed documents, we only received the sealed documents up
to a certain point. And I believe 652- P, the exhibit in question was a sealed document. So
unfortunately, we never received this.

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Judge Holmes: Do you disagree with that, Mr. Toscher?
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Mr. Toscher: Your Honor, we have had a chance to check the database, but I can't ... I'm not
going to dispute Mr. Camp. We'd like a chance to look at it, and we have a number of exhibit
things to talk with the government and go through, so I'd like to be able to read this. Because I
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can't say here now whether it was immaterial or not. So there are 22,000 pages.

Judge Holmes: I understand. We'll reserve that then, but please remind me before I close the
record at the end of everything, if I haven't acted on it by then.
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Mr. Toscher: Yes. Thank you, Your Honor.

Judge Holmes: Anything else, Mr. Camp?

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Mr. Camp: Nothing from me at this point.

Judge Holmes: Thank you. Mr. Toscher?

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Mr. Toscher: Just a couple of items ... two items before we start with Mr. Roesler this morning.
As the court knows, we lodged two reports of Eugene Volokh; one was the subject of a motion in
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limine, which the court granted, so Mr. Volokh will not be testifying. We also filed the rebuttal in
the context of an offer of proof so we can complete the record. So what I would ask the Court is
to ... if I could ask the clerk to mark those and to submit those for the record as an offer of proof

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recognizing the court's ruling that he's not going to consider legal testimony.

Judge Holmes: That's entirely appropriate as well. Please approach and have those marked for

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identification.

Court Clerk: Exhibit 653-P is marked for identification. It is the original expert report of

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Eugene Volokh. And Exhibit 654-P is marked for identification. It is the rebuttal report of
Eugene Volokh.

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Mr. Toscher: And, Your Honor, I would move those as part of the records and offer of proof.

Judge Holmes: They are so lodged in the record.

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Mr. Toscher: One other item, Your Honor, we've discussed generally with the government, there
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are parts of Mr. Roesler's reports which contain proprietary information regarding third parties
and clients. We have a written motion, which we will file with the Court, and those aspects of the
report, which we would request the Court to put under seal. I talked to the government. Their
general position is no, but I guess they will look at it, and that's the way I would propose to do it
before the reports actually get filed.
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Judge Holmes: Do you have a redacted version of his report?

Mr. Toscher: We do have the pages. We don't have the entire report. How ... what do Your
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Honor. They're ahead of me.

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Mr. Weitzman: So stipulate.

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Mr. Toscher: You just bought me my .

Judge Holmes: Please approach. Get those marked separately.

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Mr. Toscher: You gave those to me. They used to be of use.

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Judge Holmes: Have them marked separately, I guess, when the time comes when Mr. Roesler
is called.

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Mr. Toscher: Your Honor?

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Judge Holmes: Yes.

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Mr. Toscher: Our first witness is Mark Roesler of CMG.

Judge Holmes: There we go. ae

MARK ROESLER Called as a witness, sworn in.
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was examined and testified as follows:

Court Clerk: You may be seated. MR. ROESLER: Thank you. Good morning, Your Honor.
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Court Clerk: Please state your name and address for the record. MR. ROESLER: My name is
Mark Roesler, and my address is 10500 Cross Point Boulevard, Indianapolis, Indiana 46256.
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Court Clerk: Thank you.

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Judge Holmes: Mr. Toscher.

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Mr. Toscher: Can I ask the clerk to mark as exhibits Mr. Roesler's three reports in order, his
initial report, the rebuttal report and the supplemental report.
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Court Clerk: Exhibit 655-P is marked for identification. It is the original expert report from
Mark Roesler. Exhibit 656-P is marked for identification. It is the rebuttal report of Mark
Roesler. And Exhibit 657-P is marked for identification. And it is the supplemental report from

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Mark Roesler. (Whereupon, Exhibits 655-P, 656-P, and 657-P were marked for identification.)

Judge Holmes: And ... we also have marked the redacted version.

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Court Clerk: And so Exhibit 658-P is marked for identification. It is the redacted copy of the
original report of Mark Roesler. And Exhibit 659-P is marked for identification. And it is the

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redacted copy of Mr. Roesler's rebuttal report.

Mr. Toscher: Could I ask the clerk to hand 655, 656 and 657 for the witness just to identify for

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us. I'm going to ask you a question regarding each of them, Mr. Roesler.

DIRECT EXAMINATION
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Mr. Toscher:
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Q. Mr. Roesler, 655-P, which has been marked, is that your report of expert testimony in this
case, sir?
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A. Yes, it is.

Mr. Toscher: Your Honor, I ... I will go through all the questions.
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Mr. Toscher:
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Q. Could you look at 655-P, Mr. Roesler? Is that your rebuttal report submitted in this case?

A. Yes, it is.
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Q. And 657-P, is that your supplemental report submitted in this case?

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A. Yes, it is.

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Mr. Toscher: Your Honor, I move 655, 656 and 657 into evidence.

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Judge Holmes: These all come in.

Mr. Toscher: Subject to the redactions and sealing issue.

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Judge Holmes: Yes. Exhibits 655-P, 656-P and 657- P admitted into the record.

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Mr. Toscher:
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Q. Good morning, Mr. Roesler. Would you briefly describe your educational background for the
Court?
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A. Good morning. My educational background is I graduated from college called DePaul

University in Greencastle, Indiana. And then I went to law school at the Indiana University
School of Law. And I also graduated from ... attended and graduated from Indiana University
Kelley School of Business with an MBA
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Q. Okay. Indiana University School of Law, did you get a law degree?

A. I did.
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Q. Okay. The ... you graduated in what year ... the law school and the MBA?

A. 1981.
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Q. Completed both of them that same year?

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A. I did.

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Q. Could you tell us when you first got into - - what did you do after law school or the MBA
program?

A. After I graduated from law school, I began working for a company called Curtis Publishing

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Company. At that time, Curtis owned various famous pieces of art; most notably, the Norman
Rockwell art collection. And I started working for them. And shortly thereafter, that same year,
we set up a separate company to represent outside clients, and I was put in charge of that

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company.

Q. And what was the separate company's name?

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A. At that time, it was called C ... Curtis Management Group.
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Q. And did it ever change its name?
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A. A few years later, it became CMG Worldwide.

Q. Okay. Is that the same company you're associated with today?

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A. It is.

Q. Since 1981?
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A. Yes.

Q. Okay. Where is CMG headquartered?

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A. We're headquartered in Indianapolis, Indiana.

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Q. Do you have other offices?

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A. We have two other offices. We have an office here in Los Angeles, and we have an office in
Nashville, Tennessee.

Q. Okay. Now, do you also have a residence in Los Angeles?

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A. I have ... my main residence is in Indiana, but I have a home out here.

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Q. Okay. What about Nashville?

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A. I don't have a home there.
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Q. Okay. Tell us a little bit about the size of CMG today. How big is it?

A. We're close to 45 individuals. And we ... I'm sorry, the size ... how many employees?
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Q. How many employees?

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A. Close to 45 ... 43, 44, 45.

Q. Okay. Could you describe for the court what CMG does? What's its business?
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A. We've always been primary in the business of representing famous celebrities, in one fashion
or another; primarily, in terms of marketing, protecting and exploiting their intellectual property
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rights. If there ... if those celebrities are alive, we handle their personal services too. Their ...
negotiate personal appearances to endorsements to merchandise, the like.
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Q. Can you tell the court how many celebrities you've represented over the years?
Approximately.
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A. In excess of 1,500.

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Q. And how does that breakdown between living celebrities and deceased celebrities?

A. Eight-five percent probably are ... have been deceased; that's been our primary area of
expertise that we've been known for.

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Q. Could you give the court a few examples of the deceased celebrities you've represented?

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A. Well, we've represented most ... many of the famous deceased people from Princess Diana to
Marilyn Monroe to Elvis Presley to James Dean to Jackie Robinson, President Nixon, Maya

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Angelou, people like that.

Q. To your knowledge, does anybody in the United States represent more ... the interests of more
deceased celebrities than CMG Worldwide?
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A. Not to my knowledge.

Q. Tell us just a little bit about ... you're not representing the ... Elvis' estate or Elvis now with
respect to his right of publicity, are you?
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A. That's correct. I'm not.

Q. Just tell us a little bit about the years and what you did regarding the Elvis Presley right to
publicity?
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A. That is one of the first clients that we represented when I got started. And we represented
them from 1981 through 1987. When we got started, that was before Graceland had opened up,
and so the estate was just getting started in terms of trying to protect and exploit the intellectual
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property rights and generate revenue to stay afloat. They had a big structure in Memphis that
Elvis had lived in called Graceland, so they were in the process of trying to open it up to see if
they'd get ... if there'd be interest for people to come and visit it. And we were in charge of
generating merchandising and endorsement opportunities with the intellectual property rights.
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They were ... they had ... Elvis had had a ... he had died a few years earlier, in 1977. And they
had had a ... they were in litigation with his former manager. And most of the merchandise, at
that time, were ... was either done by the manager, Colonel Parker, or it was unauthorized

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merchandise.

Q. And how long did you represent the Presley estate?

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A. For six years.

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Q. Have you ever represented a living personality during their life regarding their rights ...
publicity rights who died while you were representing them?

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A. Yes, quite a few.
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Q. Okay. Could you describe briefly the difference between representing a living celebrity and a
deceased celebrity?
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A. Well, the main difference is you can't generate ... you can't do any personal service-type
contracts. And, you know, with a celebrity, when you're able to perform personal services, either
make appearances or film commercials or the like, that's a valuable component of a living
celebrity. And so, once somebody dies, we're left with simply the ability to exploit what's left of
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their intellectual property rights.

Q. Is there a difference in CMG fee structures for living celebrities and deceased celebrities?
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A. Basically, we charge probably two ... two and a half times more for representing deceased
personalities.
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Q. And why is that, sir?

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A. Well, that's for a couple reasons. First, there aren't as many opportunities, so there isn't as
much revenue that's being generated. And perhaps, more importantly, is the legal landscape
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changes quite dramatically upon death, and we're left with sorting out what those legal rights are
for that personality and how we protect them and how we commercially exploit them.

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Q. More work to do; is that fair?

A. Yes, that's a fair statement.

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Q. Have you ever experienced a situation where a celebrity's ROP rights are worth more after

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death than before death?

A. Well, that's a difficult question to answer. The ROP rights can be similar during their lifetime

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and after their death. And ... but there is more work that needs to be done to protect those rights
of publicity upon death because of the uncertainty of different countries and different states and
how they protect them. ae
Q. You talk in your report about a ... what you describe as a post-death boom for the marketing
of right publicity ... ROP rights. What is the post- death boom? Describe that for the Court.
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A. Well, we've represented many different personalities that have been alive and then died while
we were representing them. And what ... obviously, with a celebrity, when they pass away, there's
a significant amount of media attention with those celebrities. And particularly, the focus is on
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what they accomplished during their lifetime. And there's a sense of loss with the public, that
they're no longer able to have that celebrity as part of their life. They can't go see them perform.
They can't see new opportunities with that celebrity, so there's a sense of loss. And depending
upon how deep that sense of loss is, what type of media frenzy is what happens in that post-death
boom. Sometimes a post-death boom lasts a brief period of time, and sometimes it lasts longer.
But it all depends on the various circumstances of the fame of the celebrity and the loss and the
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circumstances around the death.

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Q. Okay. Can you ... do you have any current clients where you're going through the era of a
post- death boom that you can describe for the Court?
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A. Probably. The two that most quickly come to mind would be somebody like Neil Armstrong. I
represented Neil Armstrong for the last 20 years of his life, and he passed away a couple of years
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ago. There was a lot of media attention on, you know, his ... obviously, he was the first person to
walk on the moon, so he ... there were a lot of positive things that came out in the media that
people ... that increased the focus on Neil Armstrong. Another example would be Dr. Maya

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Angelou, who was quite reknowned during her lifetime for her various works, and she passed
away about two and a half years ago. And there's been a lot of media attention on who she was
and what she accomplished.

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A. stamp came out on her ... with her, and different things like that.

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Q. Now, in your report, you use the term "ROP rights," right of publicity rights.

A. Right.

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Q. And going to ask Josh to put on the screen and Ms. Strachan to hand a copy to the clerk and
to the government. Just a very simple chart. I'm going to ask you to explain your definition of
ROP rights.
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A. Okay.

Q. Wait until ... okay. Let me ask you a question. Okay, we're ready. Everybody have it?
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Mr. Camp: One second. Can we have this marked for identification?

Mr. Toscher: Yes. Thank you, Mr. Camp.

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Court Clerk: Exhibit 660-P is marked for identification.

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Mr. Toscher:
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Q. Mr. Roesler, did you prepare this?

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A. I did.

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Q. Could you tell us what it is?

A. Well, the defined term "ROP rights" is the analysis that I did in this particular task that I had
in this particular case. And I defined the ROP rights as the combination of the right of publicity

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and any associated trademarks with respect to the right of publicity. And those are two different
legal bodies of rights that impact celebrities. But first, I'll talk briefly about the right of publicity.
The right of publicity is based on state law. And it's typically based on the ... it's almost

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universally based on the domicile of a decedent, in the case of deceased personalities. And so in
this particular case, there's a California Civil Code 3344, and there's a California Code 3344.1.
3341.1 covers the rights of ... the right of publicity with respect to living people, and 3344.1

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covers the rights for deceased personalities. And it's the foundation that you have to look at when
you have someone that's domiciled in a state, like Michael Jackson, where he's domiciled in
California. And basically, the right of publicity protects the unauthorized use of someone's name,
likeness, voice, signature or photograph. So it's a state-based law. It's ... the ... in my analysis of
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everything in this case that I've studied, sometimes people throw around the terminology name
and likeness. And name and likeness is just a component of the right of publicity. And the right
of publicity is really the legal terminology that's been around for 50 or 60 years. The Supreme
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Court termed that in the Zaccini case. They referred to the right of publicity. Another case
referred to it as a property right and defined the specific values. So the right of publicity is the
foundation that we use to analyze a celebrity. And we ... I said the right of publicity was state
based. When you move over in the trademark area, normally we think of trademarks as a source
identifier. Trademarks have to be used in commerce. And trademarks are an effective way to
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supplement or even bolster the rights a personality has. And particularly, in the deceased arena,
when we represent someone one, and particularly, if a personality is able to extend beyond the
United States, we try to ... we will trademark, typically, their name in different countries. There
are 45 different classes of trademarks, so it can get expensive in this country by country. But the
associated trademarks that we looked at with this specific case to ... go back up to the top ... to go
back to our defining term of ROP rights, the associated trademarks, in this case, would be the
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trademarks that actually refer to Michael Jackson's right of publicity. So when we looked at
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those, there were two in the United States ... trademarks that were registered ... and there were 35
international. And again, as I said, the key with trademarks ... to have a trademark, you have to
show use. So unless you show use, you can't have a trademark. You can have a common law
trademark, and we do use common law trademarks to protect our clients rights, but common law
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trademarks, again, are based on use. And I didn't see any common law trademarks with respect to
Michael Jackson at the moment of his death.
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Q. Thank you, Mr. Roesler. Let me ... how would you describe what you were asked to do in
connection with this case? What was your task?

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A. In this particular case, my task was to assist in the determination of the fair market value of
the right of publicity rights for Michael Jackson at the time of his death.

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Q. And were you asked, in connection with that, to determine or project what you believed to be
the future income that could be earned from those ROP rights?

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A. Well, I wasn't asked to do anything in particular. I was asked to assist in a determination of
that. And to assist in a determination, what I had to do ... and I've done this in other cases ... I had
to analyze the pre-death revenue, which is the most determinative aspect of what a celebrity

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could generate post-death. And so I analyzed the historical revenues of Michael Jackson during
his life, during his entire career ... solo career, and I balanced that against what I thought were
comparable celebrities that I've represented. And I balanced those two, and I came up with a
projection of what I thought would reflect the reality of what would happen in the ensuing ten
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years, which I thought would be the relevant time period where most of the revenue would be
generated. And so I did do a projection ... ten-year projection.
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Q. Right. And in determining that projection, did you consider what you believe was Michael
Jackson's level of marketability at the date of his death?
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A. I did.

Q. So tell us the importance of marketability and what factors you consider in determining
marketability.
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A. Well, marketability is the key with any celebrity, both either living or deceased, on how we're
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able to generate revenue. So it's very important what type of reputation, what the public thinks of
a particular celebrity. And we're at the whim on consumer demand, so the more the public is
interested or likes or wants the celebrity, the more we're able to market it. So the marketability is
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a very important factor, and we took that into consideration.

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Q. And what was your opinion as to Michael Jackson's marketability concerning his right of
publicity, or ROP rights, at the date of his death?

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A. Well, we knew that that marketability from our analysis in everything that we saw from
various Q Scores to various other indexes, and in our own research, that that marketability was
very low.

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Q. In considering the level marketability ... I think you've said this before ... did you review his
historical ROP-type transactions?

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A. We did.

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Q. And I think you indicated before that you went back how many years?
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A. We went back to 1979, and extensively reviewed the period from 1979 to 2009; that was just
shy of a 30-year period.
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Q. Okay. In your experience ... 37 years of experience ... have you ever seen the image of a
celebrity accused of child abuse charges ever recovering his or her reputation?
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A. Not ... no. I have not.

Q. The ... when I ask ... when I'm talking about ROP rights, you define them the core, you're not
considering or including his ... Michael Jackson's intellectual property?
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Mr. Voth: Objection, leading, Your Honor.

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Judge Holmes: Sustained.

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Mr. Toscher:
Q. Are you considering in the ROP rights other intellectual property rights that Mr. Jackson or
his estate may have owned?
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A. Well, there are other intellectual property rights. We did not analyze, nor did we value, the
copyrights of Michael Jackson. And there are, obviously, valuable music copyrights associated

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with Michael Jackson and various other copyright proprietors involving copyrights of Michael
Jackson. So no, we did not value those. We focused on what we call the ROP rights; that was our
task. That ... you know, the common denominator with everyone that we've ever represented, we
represent their ROP rights. And some of those have other intellectual property rights, and some

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of them only have their ROP rights.

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Q. Can you give us an example of one of your clients where you represented the ROP rights, but
somebody else owned or represented the music interests?

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A. Well, I could give you examples of almost every client like that. So in the sense of if you want
to start with somebody like baseball, one of our big clients is Jackie Robinson. So Jackie
Robinson owns his right of publicity. There are many things that we do with Jackie Robinson
representing who he is. But we don't own, the family, the estate doesn't own the rights to the
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Dodgers or Major League Baseball or any of the footage of Major League Basement. So all that,
when we do a program, we have to have it separately licensed. We might do a replica baseball
jersey, and it might say Jackie Robinson and it might have Brooklyn Dodgers, so that's a joint
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license that we do. If you look at somebody like Maya Angelou, Random House owns a lot of
her literary works. So when we ... we have certain rights with respect to Maya Angelou, and we
license out that right of publicity. We have certain copyrights. We own ... the estate owns certain
photographs and certain other intellectual property rights. But the majority of her copyrighted
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works are owned by somebody else. We represent plenty of musicians. Chuck Berry, for
example, is an artist that I've represented for 25 years. He owns most of his music rights. And so
not only do we license out his right of publicity, but we also license out his musical compositions
and masters. So ... but other musical artists ... most of the musical artists that we represent,
their ... most of their musical assets are owned by the recording studies, the record labels, the
like, so
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Q. One last question as far as indulging my time. Thank you. You mentioned, I think, Q Scores.
And I don't know if you mentioned the Davie-Brown Index scores. All that is in your report. I
don't want you to go into detail. But just tell us what the Q Scores are, and tell us what the
Davie-Brown Index scores are, and how they related to your projection of future income for the
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ROP rights.
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A. Okay. I ... from the standpoint of a business agent or attorney like me, I don't necessarily use
the

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Q. Scores myself, but the companies I deal with use the Q Scores. So I often hear about the
companies that say if we're going to do a major campaign that's a nationwide campaign that's
going to have a big media budget or something with one of our celebrities, they're typically

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going to do research. And they're going to ... they're going to make a determination on whether
that celebrity is going to reflect well with the general public. So they're going to do some type of
research. The two of the leading research companies that do that type of marketability analysis
are the Q Score people; they've been around for ... since probably about when I started 35 years

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ago, and then the Davie-Brown folks; they're ... I think they've been around less than that, about
ten years. And they'll do ... they'll do sophisticated survey-type evidence market analysis on how
well those celebrities relate to the public. And they'll come back to me and they'll say, oh, this

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celebrity doesn't ... we're not going to use this celebrity because of this reason or that reason,
because they're responsible for the programs they put together.
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Q. And how did those scores impact your determination as to the level of marketability regarding
Michael Jackson's right of publicity rights the day he died?
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A. Well, both of those scores reflect a very low marketability ... extremely low marketability at
the moment of death.
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Q. Okay. And so we're clear when we're talking about his level of marketability; it's concerning
his ROP rights, not his music rights. Is that correct?

Mr. Voth: Objection, leading, Your Honor.

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Judge Holmes: Sustained.

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Mr. Toscher:
Q. Okay. In determination of the level of marketability, was your focus on his ROP rights?
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A. It was.
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Q. Was your focus on his music rights?

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A. I'm sorry, what was your question ... the question?

Q. Did you determine the level of marketability concerning his music rights?

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A. I did not.

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Q. Okay.

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Mr. Toscher: No further questions, Your Honor. Thank you.

Judge Holmes: Okay. Time for cross, Mr. Voth.

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Mr. Voth: Just one moment, Your Honor, please.
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Judge Holmes: All right.

Mr. Toscher: Your Honor, before Mr. Voth begins, can I move into evidence the exhibit we have
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the chart?

Judge Holmes: 660-P, that's in.

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Mr. Toscher: Thank you, Your Honor

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Judge Holmes: Do you want the redacted version of the expert witness reports as well?
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Mr. Toscher: Yes, Your Honor.

Judge Holmes: Put those in too, Ms. Wood.

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Mr. Toscher: Thank you, Your Honor.

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Judge Holmes: Whenever you're ready, Mr. Voss.

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CROSS-EXAMINATION
Mr. Voth:

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Q. Good morning.

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A. Good morning, Mr. Voth.

Q. Nice to see you again.

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A. Nice to see you too.
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Q. All right. Let's talk a little bit about your reports. So in essence, your report should be right in
conjunction with Jay Fishman's report, correct?
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A. Yes, with respect to the analysis he did after he received my report.

Q. Okay. And you're not sure how the arrangement with Jay Fishman came about, right?
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A. I can't say I am.

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Q. And your role was to provide Jay Fishman with historical revenue projections and then
coupled with future revenue projections?
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A. My role was to analyze ... assist in analyzing what the fair market value was of the ROP rights
at the moment of death. And to do that, I had to analyze the pre-death numbers and balance it
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with our numbers.

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Q. Okay. Then you came up with revenue projections for Michael Jackson's ROP rights as
defined by you, correct?

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A. That's correct.

so
Q. And those were provided to Jay Fishman?

ck
A. Yes. I believe my report was provided to him.

lJa
Q. Okay. Now, you have an MBA, right?

A. I do. ae
Q. You're capable of coming up with discounted cash flow analysis?
ich

A. I am.

Q. You prepared reports on name and likeness incorporated in discounted cash flow analysis?
mM

A. Yes, we have.

Q. All right. Let's talk about celebrity valuations. That was set up a few years ago?
a
Te

A. It was.

Q. It's not the main area of your business?

w.

A. That's correct.
ww
 om
Q. The main core of your business is representing personalities?

n.c
A. That is correct.

Q. Okay. Let's delve a little bit into the scope of right of publicity in your report. So considering
the exhibit that you just showed us ... so as part of ... I just want to make sure I understand your

so
analysis. So you analyzed Michael Jackson's right of publicity under the California postmortem
ROP statute, coupled with any associated trademarks, right?

ck
A. That's correct.

lJa
Q. Common law trademarks?

A. That's correct.
ae
Q. Federally registered trademarks?
ich

A. That's correct.
mM

Q. Foreseeable trademarks to be registered in the future?

A. Incorrect.

Q. Okay. Why did you not include any foreseeable trademarks to be included in the future?
a
Te

A. Can you define what your definition of a foreseeable trademark to be registered in the future?
Because it conflicts with my understanding of a trademark, which is based on use. So you have
to have use first to register it.
w.

Q. Okay. So let's bring a hypothetical buyer into this situation at the moment of death of Michael
...
ww
 om
A. Right.

n.c
Q. ... Michael Jackson's death. Would he try to seek to register certain trademarks?

so
A. If he purchased it.

Q. If he purchased it, right?

ck
A. Yeah ...

lJa
Q. And you mentioned ...
ae
A. Yeah. Yeah. I just qualified what you said, so is the question if he purchased it, would he
register additional trademarks?
ich

Q. Well, okay. So let's take it in steps. So you would try to purchase them or you would try to
register them first. Help me understand that.
mM

Mr. Toscher: Objection, Your Honor. Can I just ask ... just re-ask the question because I think it's
compound now and I don't know where the question is.

Judge Holmes: You can't re-ask it, but try again, Mr. Voth.
a

Mr. Voth: Will do.

Te

Mr. Voth:
Q. We're talking about what a hypothetical buyer might consider foreseeable trademarks to be
w.

registered in the future, right? And if I understood you correctly, did you or did you not consider
what foreseeable trademarks might be registered for Michael Jackson?
ww
 om
A. I think I answered no to that question, but maybe if I answer what you might be asking is
would a hypothetical buyer, once they buy the right of publicity and associated trademarks for
Michael Jackson, would they then undertake an effort to register additional trademarks? Is that

n.c
your question?

Q. Correct. That's the question indeed.

so
A. Okay.

ck
Q. And what's your answer to that?

lJa
A. Well, that would be your ultimate objective. But again, to register trademarks or to secure
trademarks, it's all based on use in commerce. So if the hypothetical investor is going to purchase
on day one, he can register ... you can register an intent to use mark, but then you have to show
use. The problem ... and I testified earlier without talking too much on what you said ... but I
ae
testified earlier with a client like a James Dean, you know, we try to bolster their ROP rights
because the landscape changes at death, and you try to bolster their rights by subsequently doing
programs that you can generate use so you can register trademarks and have additional
ich
protection.

Q. Okay. And some of these trademarks include ... like Class 36 would be for advertising
services?
mM

A. I thought Class 35 was for advertising services, but I could possibly have my classes ...

Q. 35 or 36, but I'm referring just to advertising services.

a
Te

A. Yes. 35 through 45 are service marks.

Q. And with deceased clients, you seek to register Class 35 or 36 ...

w.

A. Uh-huh.
ww
 om
Q. ... with respect to advertising. Is that something that you do?

n.c
A. With a number of our clients, yes, we do.

Q. Okay.

so
A. It can be ... there has to be a ... number one, there has to be use; and number two, there has to
be revenue potential in those areas to do that because it can become quite cumbersome and

ck
expensive to register marks in ... because there's 45 marks in every country.

Q. I understand, but I didn't ask you as to the reasons, therefore. I was asking ...

lJa
A. Okay. ae
Q. ... you if that's something that you do.
ich
A. My apologies.

Mr. Voth: Your Honor, I move to strike that last part as nonresponsive.
mM

Mr. Toscher: I object, Your Honor. He allowed the witness to go on. It was within the call of the
question.

Judge Holmes: I understand. It's overruled. Go ahead.

a
Te

Mr. Voth:
Q. All right. I just want to understand your view of what's involved in here in terms of the scope
of rights. So we have the California postmortem right of publicity statute coupled with associated
w.

trademarks, right?

A. Correct.
ww
 om
Q. That kind of ... that sets the relevant framework, in your view?

n.c
A. That's correct.

so
Q. Okay. Even if Michael Jackson's right of publicity is exploited nationwide?

A. I'm sorry. I don't understand the question.

ck
Q. Okay. We have an understanding that your - - you'd establish a framework, right, regarding

lJa
the scope of right of publicity.

A. Right. ae
Q. Right? In your view, it includes the associated trademarks coupled with the postmortem right
of publicity under California law.
ich

A. Right.
mM

Q. Okay. And you take that view, even if Michael Jackson's right of publicity rights are exploited
nationwide. Is that correct?

A. Absolutely.
a

Q. Okay. Even if they're exploited worldwide. Is that correct?

Te

A. Absolutely.
w.

Q. Okay. Even if a hypothetical buyer can protect this intangible asset through other state laws,
that's still your view, correct?
ww
 om
Mr. Toscher: Objection, assumes hypothetical, really not in evidence.

n.c
Judge Holmes: Overruled.

A. Will you explain what you mean by that question?

so
Mr. Voth:
Q. Okay. Let's say you have a hypothetical buyer. He owns this intangible asset of Michael

ck
Jackson's name and likeness.

lJa
A. Okay.

Q. Okay. He might avail himself of other state laws to protect this name and likeness asset. Is
that correct?
ae
A. Well, the majority view is that regardless of where you try to enforce the right of publicity of
ich
Michael Jackson, they will look to the domicile of Michael Jackson. The domicile is California.
So if you try to enforce these rights in Florida ... Florida ... the Florida courts will make a
determination of what right of publicity rights Michael Jackson has. And they'll base that on the
fact that he was domiciled in California, and they'll look at the protection that California offers.
mM

That's what the - - that's how that works. Now, for example, if you ... let's say you filed an action
against ... let's say you were the hypothetical investor that owned the right of publicity and
associated trademarks with Michael Jackson. And you went to Nevada, and you saw that ... you
went there and you saw at the Stratosphere where they have right now an MJ Live impersonation
show with Michael Jackson. So if you're the hypothetical investor and you sue in Nevada, the
Nevada courts would first look to the domicile of Michael Jackson to determine what rights he
a

had. But they may look to the Nevada right of publicity law to see how they address any act or
occurrence that occurs within their state in case they have a vested interest. For example, in
Te

Nevada, they specifically exclude impersonations, so their right of publicity law in Nevada is
slightly different than California. So they will ... they will apply their own standard for the act or
occurrence. They're not going to reinvent the wheel and say, oh, we've determined that Michael
Jackson no longer has or hasn't a right of publicity, that's determined by his domicile. I've never
w.

seen a situation where a right of publicity has not been determined by the domicile, in my career
of representing personalities.
ww
 om
Q. All right. So let's leave aside the parties differences. Let's do the different categories that
might be included within right of publicity, such as a Cirque Du Soleil show, a film or a
Broadway play. Let's take a film, for example.

n.c
A. Okay.

so
Q. So let's say the film is shown in 50 states, and it's also shown worldwide. It is your position
that the only protection that's afforded there is you have to look at the California postmortem
right of publicity for anything that's associated with Michael Jackson's name and likeness. In

ck
your hypothetical, you used a film. Right?

A. film of ...

lJa
Q. Right. Qualifying it, I know you don't consider it as part of right of publicity. So let's
assume ... let's leave that aside, right? We have a film.
ae
A. Right.
ich

Q. It's shown nationwide.

mM

A. Uh-huh.

Q. Is that a yes.

A. I'm sorry.
a
Te

Q. Just follow my hypothetical, okay?

w.

A. I'm trying to understand your hypothetical.

Q. Okay. It's also shown worldwide. Is that a yes?

ww
 om
A. Yes. Yes, and I'm following you.

n.c
Q. No. Yes, in terms of following what I'm saying.

so
A. Yes.

Q. Not that you agree with what I'm saying.

ck
A. Okay.

lJa
Q. And is it your position that despite a film being shown nationwide and worldwide, the only
protection that would be available would be under the California postmortem right of publicity
statute, assuming films are part of ...
ae
A. Okay. Can I ask for clarification of ...
ich

Q. Well there's nothing that ...

mM

A. ... you said ...

Q. ... is there something you don't understand about it?

a

A. Yes. Yes.
Te

Q. Okay. Go ahead.
w.

A. That's why I asked for clarification.

Q. Sure.
ww
 om
A. Would ... is there an example that you can site to me where a film or a documentary wouldn't
be shown nationwide or wouldn't be available worldwide? Because it's the nature of ... you know,

n.c
if it's on Netflix or the internet or whatever, almost any film or documentary or television show is
basically available worldwide.

so
Q. Sure, no, but that's not the point. Let's assume that we're in agreement for purposes of this
hypothetical that this film was being shown nationwide and worldwide.

ck
A. Right.

lJa
Q. Is it still your position that someone can only avail themselves with the protection of the
California postmortem right of publicity statute?

A. Absolutely my position.
ae
Q. Okay. Thank you.
ich

A. If the person ...

mM

Q. I'm not asking for an explanation.

A. But ...
a

Q. Mr. Toscher will give you an opportunity to explain.

Te

Judge Holmes: You can go on, Mr. Voth.

w.

Mr. Voth:
Q. All right. Let's delve a little bit more into the scope of right of publicity, Mr. Roesler. Now,
Indiana has a right of publicity statute, correct?
ww
 om
A. Correct.

n.c
Q. And you primarily drafted that statute with respect to postmortem right of publicity, correct?

so
A. We were primarily responsible for it, yes.

Q. Okay. Now, let's look at New York. In New York, there is no postmortem right of publicity. Is

ck
that correct?

lJa
A. That's correct.

Q. Okay. You've been nodding a couple of times. Can you make sure to say yes.
ae
A. I'm sorry.
ich

Q. You've been nodding a couple of times. Can you make sure to say yes ...

A. Yes.
mM

Q. ... as part of your answer.

A. Yes. Yes. Yes.

a
Te

Q. Okay. So with respect to New York, you've lobbied the State of New York for about 25 years
to have a statutory postmortem right of publicity. Is that correct?
w.

A. That's correct.
ww
 om
Q. Now, you represent a number of clients in states that do not have a postmortem right of
publicity statute. Is that correct? Or you have clients that ...

n.c
A. I'm sorry. Clients that are domiciled in those states without ...

Q. Right.

so
A. ... without a postmortem right of publicity? That's correct.

ck
Q. Okay. Now, in that case, you advise clients to bundle as many intellectual property rights as
they can. Is that correct?

lJa
A. Well ... ae
Q. To the extent they're available.
ich
A. ... it ... to ... yes, to the extent they're available. It is what it is.

Q. Right.
mM

A. I mean a client only has what they have.

Q. Okay. Now, at our deposition, we talked about ... there was an example of John Lennon, for
example.
a
Te

A. Right.

Q. But John Lennon was killed in New York.

w.

A. That's a question?
ww
 om
Q. Yes.

n.c
A. Yes, I believe he was.

so
Q. And you told us he doesn't have a statutory postmortem right of publicity under New York,
right?

ck
A. Well, when you say killed you really mean he was ...

lJa
Q. Well ...

A. ... probably domiciled in ... ae

Q. Right, and ...
ich

A. ... New York at the time of ... that's his ... considered his permanent residence ...

Q. Right.
mM

A. ... so.

Q. His estate was probated ...

a
Te

A. Right.

Q. ... in New York.

w.

A. ... right.
ww
 om
Q. Correct?

n.c
A. Right. Yes.

Q. And if he ... and if he were your client, you would advise his estate to spend a lot of money in
trademarking the name John Lennon. Is that correct?

so
A. I would advise them that it would be very difficult, if not impossible, to make a right of

ck
publicity claim for an rights under that category ... under that intellectual property category with
John Lennon. I would then suggest that they secure whatever photograph copyright assets they
have; those would include copyrights, any musical assets. So their portfolio, so to speak, would
be those intellectual property rights that they have rights to.

lJa
Q. Okay. Including trying to trademark the name John Lennon.
ae
A. That's correct.
ich
Q. Okay. So ... in essence, you're trying to build a brand around John Lennon. Is that correct.

A. Yes. If I let that out, that's a mistake. Yes. I would suggest that they trademark the name John
mM

Lennon.

Q. Okay. Thank you for the clarifications.

A. Sure.
a
Te

Q. Now, at our deposition, you talked about how if you don't have state law protection, it's harder
for you to earn client (sic) on behalf of your deceased clients, right?
w.

A. To earn ... what did you say?

ww
 om
Q. It's hard ... right. It's harder for ... it's harder to earn money for deceased clients if you don't
have statutory postmortem right of publicity.

n.c
A. I would ... yes, I would agree with that.

Q. Okay. And one of the examples you gave us was Arthur Ashe. Is that correct?

so
A. Yes.

ck
Q. You've had some disputes against the United States Tennis Association. Is that correct?

lJa
A. That's correct.
ae
Q. Sometimes they come back to you and allege that, you know what, Arthur Ashe does not have
a postmortem right of publicity? You're nodding. Is that yes?
ich
A. Yes, yes, I'm sorry.

Q. Okay. Now, you've done the fair market value analysis of a deceased client that did not have
mM

protection under a statutory postmortem right of publicity. Or is that something that you've done?

A. Yes, but I have certain confidentiality restraints that were ...

Q. Yeah ...
a
Te

A. I'm not sure who you're talking about.

Q. ... I'm not going to delve into any specific clients.

w.

A. Okay.
ww
 om
Q. Yeah.

n.c
A. Okay.

so
Q. So without divulging any information about specific clients, what you told us at the
deposition is that in that case the value is derived from existing contracts. Is that correct?

ck
A. That's correct.

lJa
Q. And any associated trademarks related to the name of the deceased client. Is that correct?

A. That's correct. ae
Q. Okay. All right. Let's move on to the category of branding in general. Now, at our
deposition, you told us that it's important to build trademark protection because there are
ich
limits to the right of publicity protection that a particular state might give you. Is that
correct?

A. I don't recall saying exactly that, Mr. Voth. If you could ...
mM

Q. Okay, sure.

A. ... clarify what I said and what you're asking.

a
Te

Mr. Voth: Your Honor, may I first have the clerk mark an exhibit for identification.

Judge Holmes: You may.

w.

Court Clerk: Exhibit 661-R is marked for identification.

ww
 om
Mr. Voth: And Your Honor, may I ask the clerk to provide the witness with a copy of exhibit
marked 661-R?

n.c
Judge Holmes: You do. Thank you.

Mr. Voth:

so
Q. All right. Please take a moment to go to Page 33.

ck
A. Okay. I'm there.

lJa
Q. And just read to yourself that Page 33, Lines 15 through 23, and let me know when you're
done.

A. I'm sorry, 15 through 23?

ae
Q. Right. So we're at Page 33 of Exhibit 661- R.
ich

A. Right.
mM

Q. And Lines 15 through 23.

A. Okay. I read it.

a

Q. Okay. All right. So I'll ask you the question again.

Te

A. Okay.
w.

Q. It's important to build trademark protection because there are limits to right of
publicity protection afforded by different states?
ww
 om
A. The ... what that means is depending upon ... depending upon two ... specifically, with respect
to states, it's important to build trademark protection if you don't have a right of publicity
protection, for example, in the New York example that ...

n.c
Q. Right.

so
A. ... that you stated. Trade ...

ck
Q. Okay. Thank you. Let me ask you another question.

A. Okay.

lJa
Q. And that's because some states limit their right of ... their postmortem right of publicity for a
certain number of years? That's a concern?
ae
A. It's not, no. That's not a concern if you're domiciled in a state that gives you sufficient
ich
protection.

Q. Now ... so okay. So let's make sure we're clear. So we're talking about a state in which you do
not have statutory postmortem right of publicity protection.
mM

A. Okay, but will you clarify that? Are you talking about a state where you're using the Arthur
Ashe example or the John Lennon example, or are you talking where you have a decedent that's
domiciled in a state that offers that decedent no right of publicity protection, or are you talking
about a state, like California, that offers a decedent 70 years of protection?
a
Te

Q. All right. So let's take it in steps. Just at a high level. Okay?

A. Okay.
w.

Q. To see if we're on the same page. So we have some states that do have postmortem right of
publicity that limit it to a certain number of years. Is that correct?
ww
 om
A. Well, Mr. Voth, what you keep omitting are certain states that limit the protection for
decedents that are domiciled in their state. So that's ...

n.c
Q. Okay. So let's say ...

so
A. ... that's what you leave out of the ...

ck
Q. So ... okay, so they're domiciled in a certain state.

lJa
A. Right.

Q. Right. ae
A. Right.
ich

Q. Different states, right? California provides 70 years. I think your state, Indiana, provides more
years?
mM

A. No, 100 years.

Q. A hundred ... yeah, more years. All right. So there is a difference in terms of the protection
afforded by the different states to someone who is domiciled with respect to their postmortem
right of publicity. Is that correct?
a
Te

A. That's correct. That's correct.

Q. Okay. And again, we'll continue with what you've clarified for us in terms of domicile and
w.

statutory postmortem right of publicity. That's ... I want you to follow me in terms of that's the
premise that we're working on to ensure we're on the same page.
ww
 om
A. Okay.

n.c
Q. So then also, some states limit the type of categories that might receive protection. Is that
correct?

A. That's correct.

so
Q. And some states do not even have postmortem right of publicity protection. Is that correct?

ck
A. That is correct.

lJa
Q. Okay. Now, you've had some discussions with the United States Patent and Trademark Office.
Is that correct? ae
A. With respect to what?
ich
Q. With respect to the importance of trademarks.

A. Yes.
mM

Q. Right. You gave a speaking engagement at the U.S. PTO's office?

A. Yes. That's correct.

a

Q. Okay. And if I recall from your deposition, part of your objective was to try to help them
Te

recognize the importance of extending the protection for deceased personalities. Is that correct?

A. That's correct.
w.

Q. And the U.S. PTO, it's done a good job at rejecting trademarks that are based on the name of a
ww

personality by someone else. Is that correct?

 om
A. Yes, I would agree with that.

n.c
Q. Okay. Now at a high level, trademark law can be an effective way to protect a celebrity's
name and likeness. Is that correct? In isolation.

so
A. I would say that is incorrect.

ck
Q. Okay.

lJa
A. Do you want me to expand on that?

Q. I do not. ae
Mr. Voth: One moment, Your Honor.
ich

Judge Holmes: Okay.

Mr. Voth: All right. So we're looking at - - so please go to Page 99 of Exhibit 661-R, marked for
mM

identification.

Mr. Toscher: I can just look at it on the screen, right?

a

Mr. Voth: Whatever works best for you ..

Te

Mr. Toscher: So you're going somewhere. Okay.

w.

Mr. Voth: So I'm looking at Line 16 through 20.

Mr. Voth:
ww
 om
Q. And so your answer to one of my questions was, "Well, I guess as an extension of what
we just talked about because it can be difficult to protect a name and/or likeness of a
celebrity, once they're dead, trade mark can be an effective way." Did I read that correctly?

n.c
A. You did.

so
Q. Okay. Now, certain countries only recognize trademark rights with respect to a deceased
client. Is that correct?

ck
A. Yes.

lJa
Q. Okay. Now, trademarks with respect to a deceased personality's name can be effectively
turned into a brand. Is that correct?

A. Will you repeat that question, Mr. Voth.

ae
ich
Q. Sure. So trademarks can help you to, in essence, turn a deceased personality's name into a
brand. Is that correct?

A. I would agree with that statement.

mM

Q. Okay. And you like to turn some of your clients into a brand.

A. I would say that's correct.

a
Te

Q. Okay.

Mr. Voth: Mr. Camp, can you pull up Exhibit 567-J, that's part of the first stipulation of facts,
w.

please?

Mr. Camp: Is that 567 or 267.

ww
 om
Mr. Voth: 567-J.

n.c
Mr. Voth:
Q. Have you seen this poster before?

so
A. I have. I seem to recall it being on the cover of a DVD, so if it's a poster, too.

ck
Q. Okay. And we have Michael Jackson's name. Is that correct?

lJa
A. That's correct.

Q. And we have an image of Michael Jackson. Is that correct?

ae
A. That's correct.
ich

Mr. Voth: Okay. Mr. Camp can you pull up Exhibit 568-J, please.

Mr. Voth:
mM

Q. Have you seen this image before?

A. I have.
a

Q. Okay. So we have Michael Jackson's name. Is that correct?

Te

A. That's correct.
w.

Q. We have Michael Jackson at an earlier age than when he passed away. Is that correct?
ww

A. That's correct.
 om
Mr. Voth: Okay. Mr. Camp, can you pull up Exhibit 570-J, please.

n.c
Mr. Voth:

so
Q. All right. So I'd like to focus on the top image. So we have Michael Jackson's signature. Is
that correct?

ck
A. That's correct.

lJa
Mr. Toscher: Your Honor, I don't want to interrupt Mr. Voth. I believe we have a continuing
objection to relevancy. We stipulated to authenticity. I just wanted to make that clear for the
record.

Judge Holmes: Okay.

ae
ich
Mr. Voth: So noted.

Mr. Toscher: Okay. Sorry.

mM

Mr. Voth:

Q. And we have an iconic image of Michael Jackson on the top image right over here.
a

A. Is that an image or a drawing? I'm not sure, but ...

Te

Q. Whatever it is ...
w.

A. ... I wouldn't disagree.

ww
 om
Q. That it's an iconic image of Michael Jackson? Drawing or image.

n.c
A. Sure. Sure.

Q. So in essence, the estate has turned Michael Jackson into a brand. Is that correct?

so
A. I wouldn't agree with that statement.

ck
Q. Okay. So you represented the Elvis Estate, correct?

lJa
A. That's correct.

Q. Now, when Elvis passed away he was overweight, correct?

ae
A. That's correct.
ich

Q. That's not the image that you wanted to project when he became your client, correct?

A. That's correct.
mM

Q. You wanted to project the image of the 1968 comeback Elvis. Is that correct?

A. That's correct. That's correct.

a
Te

Q. Okay. Isn't that what the estate is doing, projecting a certain image of Michael Jackson?

A. Well, I ...
w.

Q. Let's limit it solely to the ... just for clarification ... solely to the three images ... the three
exhibits I've shown you, right?
ww
 om
A. Right.

n.c
Q. Do you agree that there's a certain image the estate is projecting of Michael Jackson?

so
A. I don't represent the Michael Jackson Estate, so I don't know what image, or imagery, they're
trying to project. I agree with you that you showed me three different images, and they're ... if we
want to agree that they're iconic images of Michael Jackson, I can agree with that statement,
but ...

ck
Q. Okay. And ...

lJa
A. ... but I don't know what the objectives or the strategic marketing plan for the Michael
Jackson Estate is.
ae
Q. I understand that. You've been doing this for 36 years, correct, representing deceased clients?
ich

A. Yes.

Q. And given ... let's limit it to the three exhibits I've shown.
mM

A. Okay.

Q. Do you agree there's a certain image that's being portrayed of Michael Jackson in a positive
a

way? I'm not asking you to make assumptions as to what their strategies ...
Te

A. In those three images?

w.

Q. Correct, in those three images.

A. I look at them favorably, yes.

ww
 om
Q. Okay.

n.c
A. I think it's a positive image.

so
Mr. Voth: Mr. Camp, can you pull up Exhibit 569-J, and specifically let's go to Page 3. And just
for the record, these are marketing materials of Cirque de Soleil for Michael Jackson One.

ck
Mr. Voth:
Q. All right. Do you agree that this tabloid lists Michael Jackson as the main character of the
Michael Jackson One show?

lJa
A. I do agree with that. ae
Q. Okay. And please let me know if I read the first sentence correctly. We're talking about
Michael Jackson. "
ich

A. living presence in the show through video, whispers, laughter, verging, spoken and projected
narrative, screaming, silhouettes, elemental forces, et ceetera." Did I read that correctly?
mM

A. Yes, you did Mr. Voth.

Q. Okay. Now, I'll read this second ... I'll read part of another sentence which starts, "Michael is
also represented." "Michael is also represented through certain of his visual iconography, his
iconic glove, hat, shoes, and glasses, which are transformed into talisman meant to represent
a

certain qualities possessed by Michael." Did I read that sentence correctly?

Te

A. You did.
w.

Q. "He is the primary protagonist, our guide, and through his music, lyrics, and words he is also
our narrative." Did I read that last part correctly?
ww
 om
A. Yes, you did.

n.c
Q. Okay. Now, during our deposition, it was my understanding that you took the position that
there is, with the exception of the boutique store next to the Michael Jackson One show, there is
no other name and likeness involved. Is that correct?

so
A. Can you give me from one attorney to the other what your definition of name and likeness is?
Because I don't understand. I'm confused.

ck
Q. Well, let's go with your definition. Based off of your definition.

lJa
A. My definition is called the right of publicity. That's the only terminology I've ever known, and
the name and likeness, the unauthorized use of name and likeness is covered under various right
of publicity statutes. So if you're Michael Jackson and you're domiciled in California, your name
and likeness, the unauthorized use of your name and likeness, is covered under the California
ae
3344.1 Statute, which provides ... Section 1 provides that it protects the name, likeness, voice,
signature, and photograph of Michael Jackson. The next section incorporates what the exclusions
are, and the exclusions exclude films, plays, and the likes.
ich

Q. No, that's fine. I just want to make sure we're on the same page. So we have ... in your view
you have in essence this umbrella which has the California postmortem right of publicity statute
coupled with any associated trademarks, right?
mM

A. Right. Right.

Q. Okay. And we talked about that at our deposition that you were familiar with the Michael
a

Jackson One Cirque de Soleil show.

Te

A. That's correct.
w.

Q. Okay. And you took the position that there is, per your definition, no right of publicity of
Michael Jackson involved.
ww
 om
A. In the Cirque de Soleil show?

n.c
Q. Correct.

A. That's correct.

so
Q. In fact, you would advise Cirque de Soleil to put on this show without seeking authorization
from whoever holds Michael Jackson's right of publicity?

ck
A. I believe I said that. I believe I went further and said I'd probably indemnify.

lJa
Q. That was indeed my next question. So yes. So you would indemnify Cirque based on the
advice that you would give them to proceed without seeking a license for Michael Jackson's
name and likeness, to put on a Cirque de Soleil type of show. Is that correct?
ae
A. Any show in a place like Las Vegas incorporates various aspects. And as you mentioned
ich
earlier, there's a shop that sells a lot of merchandise. So when ...

Q. No, that's fine. I'm not asking. I'm just seeking clarification that that's what you would advise
Cirque that they don't have to ... excluding the merchandise at the boutique store right next to the
mM

Michael Jackson One theater ...

A. Okay.

Q. ... you would advise Cirque not to seek a license for Michael Jackson's name and likeness. Is
a

that correct?
Te

A. Okay. But let me ...

w.

Q. Right of publicity, as you've defined ...

ww
 om
A. Right, but can I understand your hypothetical? Are you saying that in 2016 ... sorry 2017 ... in
2017, with the exact uses that are being made at Cirque by virtue of their arrangement with the
estate, which includes the right of publicity ... so you're saying ... so the ... that ... all of those

n.c
particular uses or are we going back to ... are we going to 2017, or are we going back to the
outset when they're getting ready to do Cirque, and the hypothetical investor wants a seat at the
table a ... because that's a different ...

so
Q. I agree ...

ck
A. ... hypothetical.

Q. No, that's a great clarification.

lJa
A. Okay. ae
Q. I appreciate it. So no, we're not ... we're slowly using this as a proxy, but in essence we're
going back to the moment of death.
ich

A. Okay.
mM

Q. Let's go back to June 25, 2009. Let's take Cirque as an example. They're thinking about
putting on a show. Leaving aside whatever rights they have to get in terms of Michael Jackson's
music, right? Let's put that aside. With respect to Michael Jackson's right of publicity as you've
defined it, you would advise Cirque to just proceed and not seek a license from whoever owns
that intangible asset. Is that correct?
a

A. Who ... will you clarify the rational investor? Is the rational investor the estate, or is the
Te

rational investor a hypothetical?

Q. No, it's a hypothetical.

w.

A. It's a hypothetical investor.

ww
 om
Q. Right.

n.c
A. Okay. So they're at the outset of planning a Cirque type show.

Q. Correct.

so
A. I would advise them that they have absolutely no need to secure a right of publicity license,
that they should secure a license to do the merchandise, and that's all they need.

ck
Q. Okay. And ... but you would indemnify Cirque under those circumstances. Is that correct?

lJa
A. That is correct.
ae
Q. That is correct. Okay. Let's talk a little bit about James Dean. You mentioned him in your
report, correct?
ich
A. I did.

Q. Okay. But he's one of your clients.

mM

A. He is.

Q. He was known for being an actor and an entertainer?

a

A. He was.
Te

Q. You tried to develop a brand around the name James Dean.

w.

A. That's correct.
ww
 om
Q. In fact, you told us it's no different than the McDonald's brand for example as to what they try
to do.

n.c
A. Well, I ... by no different, I guess similarities.

Q. Similarities?

so
A. Similarities.

ck
Q. Okay. And you built this brand by developing trademark protection?

lJa
A. Trademarks were important for us, yes.
ae
Q. Okay. Because you do business in different parts of the world that do not recognize right of
publicity. Is that correct?
ich
A. That either don't recognize it, or limited protection, or the like, yes.

Q. Okay. And as part of your strategy with James Dean, was to bundle trademark rights, right of
mM

publicity, and imagery that you owned in terms of copyright. Is that correct?

A. That ... basically, yes. That's correct.

Q. Okay.
a
Te

Mr. Voth: Your Honor, before we delve into a pretty lengthy section, maybe just take a five-
minute break?
w.

Judge Holmes: Oh, sure.

ww

Mr. Voth: Thank you, Your Honor.

 om
RECESS

n.c
Judge Holmes: Mr. Voth.

so
Mr. Voth: Thank you, Your Honor. Mr. Camp, can you pull up Exhibit 655-P? That would Mr.
Roesler's original report, and specifically I'd like to go to Page 18.

ck
Mr. Voth:
Q. Okay. So we're going to delve a little bit into this Chart that you prepared Mr. Roesler, the
Historical Article Rights and Revenues Chart on Page 18 of Exhibit 655-P. Now, as part of the

lJa
different agreements, you list the Pepsi Sponsorship Bad Tour. Is that correct?

A. Yes, I did.
ae
Q. Now, in that case the contract required the filming of two commercials. Is that correct?
ich

A. On which one, Mr. Voth?

mM

Q. The Bad Tour.

A. Okay. That was on a different page, isn't it?

Q. Well, we have it on Page 18.

a
Te

A. Okay. Yes.

Q. Right.
w.

A. Yes, I see that.

ww
 om
Q. Okay. So the question is, in that case the contract required the filming of two commercials. Is
that correct?

n.c
A. That's correct.

so
Q. And Jackson created a jingle featuring the song Bad. Is that correct?

ck
A. Yes that's correct.

lJa
Q. Okay. And then, if we look at Page 19, we have the Pepsi Sponsorship Dangerous Tour. And
please let me know when you're there, Mr. Roesler.

A. I'm there.
ae
Q. Okay. In that case, Michael Jackson allowed his image and/or silhouette to be used on Pepsi
ich
cans. Is that correct?

A. Let's see here. I'm sorry that was the ...

mM

Q. We're talking about the Dangerous Tour.

A. Okay. Let me pull up the notes on that, if you'll give me just a moment.
a

Q. Absolutely.
Te

A. That's correct.
w.

Q. Okay. And when we look at ... strike that. So we have the Historical ROP Rights Revenue
Charts, and in essence, if I understand it correctly, you've allocated a percentage to your right of
publicity and a percentage to personal service. Is that correct?
ww
 om
A. Yes, that is correct.

n.c
Q. Okay. So we just talked about the Pepsi sponsorships with respect to the Bad Tour and
Dangerous Tour, right?

so
A. Okay. So I'm sorry, are we talking about the allocation on just specifically Pepsi?

ck
Q. No, no. First what I want to establish as a foundation that I understand your chart correctly.

lJa
A. Okay.

Q. So part of what your chart does is allocate a percentage to personal services and a percentage
to right of publicity. Is that correct?
ae
A. Not exactly.
ich

Q. Okay.
mM

A. The ... we try to recreate the historical revenue of all the contracts that generated revenue that
involved Michael Jackson's right of publicity during his lifetime, and we had 41 different
opportunities that are listed on that chart. Some of them are listed a couple of different times
because they were multiple revenue pieces that came, but there's 41 different ones.
a

Q. Okay. Thank you. I understand where you're going. So then ... there is with respect to these
different agreements, there is a right of publicity percentage that is allocated. Is that a correct
Te

statement?

A. That is correct.
w.

Q. Okay. And so we talked about the sponsorships with respect to the Bad Tour and the
Dangerous Tour. Is that correct?
ww
 om
A. Yes.

n.c
Q. Okay. And you allocated the same percentage for these two tours ... for these two agreements.
Is that correct?

so
A. That is correct.

ck
Q. Okay. All right. So I'd like to take ... let's go to the Suzuki Scooter Agreement where you
allocated a 50 percent revenue percentage. You did not review an agreement in that case. Is that
correct? Yes or no.

lJa
A. Can I take a moment to find out?

Q. Sure.
ae
ich
Mr. Toscher: Counsel, can you point to where that is? The Suzuki Scooter ...

Mr. Voth: Sure. It's the third one ...

mM

Mr. Toscher: At the top, thank you.

Mr. Voth: ... Historical Rights and Revenues Chart.

a

Mr. Toscher: Thank you.

Te

A. Okay. I found it.

w.

Mr. Voth:
Q. So the question is, you did not review the agreement for the Suzuki Scooter deal. Is that
ww

correct?
 om
A. That's correct. I didn't review the agreement.

n.c
Q. Okay. Thank you. All right. Moving on to the next one, the Pepsi Sponsorship Victory Tour,
you did not review an agreement for that deal? Is that correct?

so
A. The 1984 Victory Tour Merchandise Agreement?

ck
Q. Right.

lJa
A. That's correct.

Q. Okay. And with respect to entertainment properties and clothing line, you did not review an
agreement with respect to that deal. Is that correct?
ae
A. That is correct.
ich

Q. And in that case, with respect to entertainment properties, you allocated 50 percent to ROP
revenue. Is that correct?
mM

A. That is correct.

Q. Okay.
a

Mr. Voth: Your Honor, may I approach the Clerk to have an exhibit marked for identification?
Te

Judge Holmes: You may.

w.

Court Clerk: Exhibit 662-R is marked for identification, Interview Deposition of John Branca.
ww
 om
Mr. Voth: And Your Honor, may the Court provide the witness with a copy of the 662-R marked
for identification?

n.c
Judge Holmes: Mm-hmm. Go ahead.

Mr. Voth: We will have to revisit this because apparently, we are missing a page. Yeah, we are.

so
Mr. Toscher: Is it supposed to be the whole deposition?

ck
Mr. Voth: No, no. It's an excerpt of the deposition, but we are currently missing a page so we'll
revisit this.

lJa
Mr. Toscher: I have nothing in here but a table, just Page 6.
ae
Mr. Voth: No. Right. So we'll have to revisit this ...
ich
Mr. Toscher: Okay. I just want to be sure.

Mr. Voth: ... because we have an incorrect copy as we speak, so we'll probably do that after
mM

lunch. All right. Moving on.

Mr. Voth:
Q. All right. So we're still at the Historical ROP Rights Revenue Chart, and we're at ... let me
know when you can locate the Will Vinton Productions Agreements.
a
Te

A. I have it.

Q. Okay. You did not review any contracts with respect to those agreements. Is that correct?
w.

A. That's correct.
ww
 om
Q. Okay. Next, would be the Pepsi Sponsorship Bad Tour 1987, you did not review an agreement
with respect to that deal. Is that correct?

n.c
A. That's correct.

Q. All right. Slightly below that would be the View-Master Ideal. You did not review an

so
agreement with respect to that agreement. Is that correct? You didn't review a contract?

ck
A. That's correct.

Q. All right. We have a series of agreements with respect to JR Holographics. You did not review

lJa
any of those contracts with to respect to those deals. Is that correct?

A. That's correct.
ae
Q. The same would be true with respect to LA Gear.
ich

A. That's correct.
mM

Q. All right. Let's go to Page 19. So the first one is Sega Genesis. With respect to that agreement,
you did not review a contract. Is that correct?

A. That's correct.
a

Q. And the same would be true with respect to the Pepsi Sponsorship Dangerous Tour 1982. Is
Te

that correct?

A. I'm sorry. Did you say '82?

w.

Q. If I did, I misspoke. So we're looking at the Pepsi Sponsorship Dangerous Tour 1992. Thank
you for that clarification.
ww
 om
A. Okay. Maybe I heard you wrong. And the question was did I see a contract on that?

n.c
Q. Correct.

so
A. No, I did not.

Mr. Voth: Okay. All right. Let's move on to a different topic, and we'll revisit 662-R marked for

ck
identification. Mr. Camp can remind me.

lJa
Mr. Voth:
Q. All right. Let's talk in general about use of social media with deceased clients. Social media
with deceased clients is important for people to see that they're still relevant. Is that correct?
ae
A. Generally, I'd agree with that.
ich
Q. Okay. It's helpful to promote deceased clients.

A. I'm sorry ...

mM

Q. It's helpful to promote deceased clients.

A. I'm sorry. I missed the first words that you said.

a

Q. Okay. We're talking about social media.

Te

A. Okay.
w.

Q. With respect to deceased clients, right?

ww
 om
A. Right.

n.c
Q. It can help you promote the deceased clients. Is that correct?

A. That's correct.

so
Q. To brand their image. Is that correct?

ck
A. You could use the terminology brand, yes. Market, I would probably use. Promote.

lJa
Q. Well, I'm using your own terminology and if we go to ...

Mr. Voth: All right. So I'd like to go to Exhibit 661-R marked for identification, specifically
ae
Page 177. And during the deposition, we were talking about social media and I'm going to read
Lines 18 through 21.
ich
Mr. Voth:
Q. I asked you a certain question and you answered, "Social media is very important, and it's an
important factor that we use with our various clients to promote them, to brand their image so it's
important to us." Did I read that statement correctly?
mM

A. Okay. I'm sorry. This is my deposition, correct?

Q. Correct.
a
Te

A. Okay. So ...

Q. So the only question is whether I read that statement correctly.

w.

A. Well, you read it correctly.

ww
 om
Q. Okay. Thank you. Now, at your deposition you also stated that without social media you have
no footprint. Is that correct, with respect to deceased clients?

n.c
A. Well, I mean if you want to show me that statement ... I mean ...

Mr. Voth: Sure. Let's go to Page 32, Mr. Camp of Exhibit 661-R.

so
A. Okay. Can I see the question?

ck
Mr. Voth:

lJa
Q. Okay. So I asked you a certain question as to why is social media important for a deceased
client and you answered, "Well, it's important for people to see that they're still relevant. If we
represented a client, and the client had no social media footprint out there, it would be harder for
us to convince a party to use that personality because we only have their intellectual property to
sell." Did I read that statement correctly?
ae
A. Yes, you did.
ich

Q. Okay. And CMG has deceased clients with a very big social media presence. Is that
correct?
mM

A. That's a relevant term, but I would ... I think we have a number of clients with over a
million dollar ... over a million followers on various social media platforms. So we ... a
number of our clients have impressive social media numbers.
a

Q. Okay. And I was using your own term at the deposition. So if we look at ... we're still at
Te

Page 32, starting with Line 15 through 18, you stated, "I mean, we have certain clients that
have, you know, a very big social media presence even though they are deceased." Did I
read that correctly?
w.

A. You did read it correctly.

ww
 om
Q. Okay. All right. During the examination of Mr. Toscher, it was established that Elvis was one
of your first clients. Is that correct?

n.c
A. Yes.

Q. There was no social media back then. Is that correct?

so
A. That's ... that wasn't. I guess there was - -

ck
Q. Yes or no.

lJa
A. Yes, yes. I had to think. No, there wasn't.
ae
Q. Okay. And social media can quickly enable one to provide ... to project an image in a fast-
effective way?
ich
A. Well, you have to build up social media.

Q. Sure.
mM

A. But if you ... you know, social media is very important today.

Q. All right. And once you do build it up, it enables you to project a certain image. Is that
correct?
a
Te

A. I would agree that it certainly helps, yes.

Q. Okay. And some of the social platforms that you used are Facebook.
w.

A. Yes.
ww
 om
Q. Twitter.

n.c
A. Yes.

so
Q. Instagram.

A. Yes.

ck
Q. Snapchat to a certain limited extent.

lJa
A. Snapchat's become important, so yes, now in 2017.
ae
Q. Okay. And you mentioned previously during your testimony Dr. Maya Angelou, correct?
ich
A. I did.

Q. She's still one of your clients?

mM

A. Yes, she is.

Q. And you did a commercial with Dr. Maya Angelou and Apple for the opening of the Reno
Olympics in 2016. Is that correct?
a
Te

A. That is correct.

Q. And she was paid a separate fee for certain social media.
w.

A. Yes.
ww
 om
Q. Certain tweets.

n.c
A. That's correct.

Q. Facebook posts.

so
A. I'm not sure if it's just ... I think it was Facebook posts and tweets, yes.

ck
Q. Okay. All right. Let's move on to the impact of death of a deceased celebrity. Now, in this case
you looked at what would be reasonable to occur after Michael Jackson's death, correct?

lJa
A. Yes.
ae
Q. And that was based primarily on historical revenues coupled with the possibility to rebrand
them?
ich
A. I'm sorry. I didn't understand.

Q. Okay. In developing your historical revenues and your forward-looking revenues ... your
mM

future revenue projection ...

A. Right.

Q. Right. You looked at historical revenues.

a
Te

A. Yes.

Q. Coupled with the possibility of rebranding Michael Jackson. Is that correct?

w.

A. Partially correct. We also looked at comparable CMG clients, and that was a big part of our
ww

analysis. We looked at the 30 years of historical ROP revenue for Michael Jackson, and there
 om
were six different comparables that we thought were - - had certain commonalities with Michael
Jackson. So we balanced the historical numbers versus those comparable numbers. And then we
did an analysis of the marketability of Michael Jackson at the moment of death, pre-death

n.c
marketability, and then we took into consideration that there'd be a changed landscape. The
changed landscape would have good parts of it and it'd have bad parts of it.

so
Q. Okay. Thank you for that clarification though my question was only partially correct given
your further explanation.

ck
A. Okay.

Q. Is that correct?

lJa
A. Yes. ae
Q. Right. Okay. Now, you mentioned these comparables. They were only based on existing or
current clients that you've had at CMG. Is that correct?
ich

A. That's correct.
mM

Q. Okay. Now, upon death, a new window opens up for a personality. Is that correct, anew
window of opportunity?

A. You're talking about ... no, I would not agree that upon death a new window of opportunity
opens up for all celebrities that pass away ...
a
Te

Q. All right. So let's ...

A. ... certainly the landscape changes, and you know there are certain celebrities that can
w.

generate revenue after they ... after they're dead.

ww
 om
Q. Okay. So what is your definition of a personality? I mean, you used that term during our
deposition so I want to make sure that we're on the same page.

n.c
A. I'm sorry. A personality in terms of who we represent? Or ...

Q. Right, yeah.

so
A. Or a potential client? You know, I mean, generally we're in the business of exploiting the ...

ck
exploiting and protecting the intellectual property rights. If we're talking about deceased
personalities, we're ... you know, but ... you know those deceased personalities.

lJa
Q. All right. So then there's a new window of opportunity with respect to, would it be fair to say,
prominent deceased personalities.

A. There can be, yes.

ae
ich
Mr. Voth: All right. So let's take a look at Exhibit 661-R, your deposition, Page 78, Mr. Camp.

Mr. Voth:
Q. And so I'm going to start reading with Line 25 ...
mM

Mr. Camp: One second. I apologize.

Mr. Voth:
a

Q. During our deposition, we were talking about this similar topic and you answered, "Well," ...
Te

Mr. Toscher: Objection, Your Honor. Can I ask him to ask a question first or at least some
context?
w.

Judge Holmes: He can wind up a little. Let him finish.

ww
 om
Mr. Toscher: Yeah. Just very brief ... I was seeking clarification.

n.c
Mr. Voth:
Q. Your answer was, "Well, with your personality upon death, a new window opens up." Did I
read that sentence correctly?

so
A. I'm sorry. Are you pulling it up there?

ck
Q. Right. So we're here ...

lJa
A. Okay.

Q. Line 25 ...
ae
A. Well, what do you mean by a new window ...
ich

Q. "Well, with the personality upon death a new window opens up." Did I read that sentence
correctly?
mM

A. Yes. You read that different than when you read it to me earlier.

Q. Okay. No, that's why we're ... why I'm seeking clarification. Thank you, Mr. Roesler.
a

A. Okay.
Te

Q. So for certain deceased personalities, a different landscape exists upon death, right? For an
iconic ...
w.

A. Well, I think for all personalities once ... for all celebrity personalities ... all famous
ww

personalities ...
 om
Q. Okay.

n.c
A. ... that are famous personalities that generate revenue because of their fame, upon death a
different window opens up. They're no longer able to command any personal service type
revenue. If they're a sports star, they can't sign autographs.

so
Q. So that's fine. Thank you. There is a window, correct?

ck
A. Right. It's a different window, yes.

lJa
Q. So then ... and that's especially true with celebrities who died at a point in time in their career
when people aren't expecting it. Is that correct?

A. That's correct.
ae
ich
Q. You saw that with Princess Diana?

A. I did.
mM

Q. Dale Earnhardt.

A. I did.
a

Q. James Dean.
Te

A. I didn't personally experience it with James Dean because we represented him after that, but
he was an example of somebody that was very dramatic passing, and there was ...
w.

Q. It was unexpected?
ww
 om
A. Unexpected, yes.

n.c
Q. Okay. Same with Elvis Presley?

A. Yes.

so
Q. Michael Jackson.

ck
A. Yes.

lJa
Q. Okay. So with death, there could be a dramatically different Jackson with Michael Jackson.
As to how to exploit his ROP rights.
ae
A. Upon Michael Jackson's death, there was a dramatically different landscape with respect to
the whole business around Michael Jackson, yes.
ich
Q. Okay. So that would be his music coupled with his right of publicity as you have defined it,
correct?
mM

A. Yes.

Q. And one of the things that you mentioned at the deposition was that what's key is upon death,
whoever is in charge has to decide what type of business to pursue with the deceased client. Is
that correct?
a
Te

A. Yes. There's a new person in charge.

Q. Okay. And so in your report, Exhibit 655- P, is it correct that your analysis assumed post-
w.

death rehabilitation. Is that correct?

ww
 om
A. My report concluded that post-death rehabilitation was necessary to generate any meaningful
revenue and in our projections ... future projections, we assumed that there would be significant
post-death rehabilitation.

n.c
Q. Okay. All right. Now, music helps keep Michael Jackson relevant. Is that correct?

so
A. I think ... I would not disagree with that statement.

ck
Q. Okay. Now, we talked about social media. Social media can also help keep Michael Jackson
relevant. Is that correct?

lJa
A. I would agree with that.

Q. And if you have shows like such as Cirque de Soleil's Michael Jackson's One, that also helps
ae
keep Michael Jackson relevant. Is that correct?
ich
A. Well, maybe you should define relevant for me.

Q. What part of relevant are you ...

mM

A. Well, I think certainly people come to ... people that are in Las Vegas. I think a lot of people
go to the Cirque de Soleil show. I think a lot of people also go to MJ Live show. So I think yes,
Michael is relevant for a host of different reasons. His music's out there. His ... so I agree with
what you're saying. That he continues to be relevant.
a

Q. So at a high level, if he's still relevant, that can increase a possibility to capitalize on his name
Te

and likeness. Is that correct?

A. I would not disagree with that statement.

w.
ww
 om
Q. Okay. Thank you. All right. Let's talk about the intersection between right of publicity and
Michael Jackson's music IP. Michael Jackson was known as the greatest entertainer of all
time, correct?

n.c
A. I would probably agree with that statement ...

so
Q. Okay.

ck
A. I've said that.

Mr. Voth: All right. Mr. Camp, can you pull up Exhibit 661-R, Mr. Roesler's deposition?

lJa
Mr. Voth:
Q. If we go to Page 82, Line 10, let me know when you're there. Okay. So I asked you a certain
ae
question and you answered, "Yes, Michael Jackson was known as the greatest entertainer of
all time." Did I read that sentence correctly?
ich

A. You did.

Q. Okay. During the deposition, we delved into this intersection of right of publicity and music,
mM

and in your view the value of his right of publicity is greater if held in conjunction with his
music assets. Is that correct?

A. I don't necessarily agree with that statement.

a

Q. Okay. All right. So let's go back to Page 82 of Exhibit 661-R, Line 20. I asked you the
Te

following question, "So there is more value to right of publicity rights when they are held in
conjunction with the IP music rights." ANSWER: "Sure, there is. Sure." Did I read that
correctly?
w.

A. You did.
ww
 om
Q. And you also told us that there could be significant media interest in the case of a musician,
correct, such as Michael Jackson?

n.c
A. I think so. I mean ...

Q. Okay. So let's see if I can refresh your recollection ...

so
A. ... I'm not sure of the context, but it doesn't ...

ck
Q. I know we delved into a lot of different topics during the deposition.

lJa
Mr. Voth: One moment, Your Honor.

Judge Holmes: Okay.

ae
Mr. Voth: All right. So to not waste any time I'm going to return to this subject. Mr. Camp, if
ich
you could please make a note of this. I'd appreciate it.

Mr. Voth:
mM

Q. All right. Let's go into another section of your report, the comparables that you used. Now,
your celebrity clients often make the Forbes list of highest earning dead celebrities. Is that
correct?

A. They do.
a
Te

Q. Those who work at Forbes have talked to you to get information about your clients?

A. They have.
w.

Q. Let's quickly talk about Marilyn Monroe. You represented the estate from 1990 until 2010. Is
that approximately correct?
ww
 om
A. Approximately.

n.c
Q. Okay. And you provided exclusive representation?

so
A. During 15 years.

Q. During 15 years?

ck
A. Yes.

lJa
Q. Okay. And you're involved in the litigation to determine the scope of her postmortem right of
publicity rights. Is that correct? ae
A. Yes, I was a party.
ich

Q. So you litigated the matter on behalf of the estate?

A. I was one of the parties.

mM

Q. Okay. So the answer is yes.

A. What's your definition of litigating?

a
Te

Q. All right. So you're one of the parties. You were involved in the litigation ...

A. Yes, we were a party. I mean we ... and yes, we were a party.

w.

Q. Okay. And it was your objective to prove that Marilyn Monroe was domicile in California. Is
that correct?
ww
 om
A. That is correct.

n.c
Q. Cause New York did not have a postmortem right of publicity for someone who was
deceased. Is that correct?

so
A. That is correct.

ck
Q. Now, it was eventually determined that she did not have protection in California for her
postmortem right of publicity. Is that correct?

lJa
A. It was determined that Marilyn was domiciled in New York.

Q. Therefore, she did not have protection under the California Statute of postmortem right of
publicity ...
ae
ich
A. That's right. She could not avail herself to the 70 years of postmortem protection in
California.

Q. Okay. So the estate had to regroup as a result of that holding.

mM

A. That's correct.

Q. That they're working on an association with the photographers who held copyrights with
a

respect to her images?

Te

A. Yes, yes.
w.

Q. Okay. Part of the strategy was also to increase whatever trademarks she could register.
ww
 om
A. I haven't been involved in recent years with the Marilyn Monroe Estate so I don't know
exactly what the strategy is right now.

n.c
Q. Well, I'm not asking about right now. I'm asking about after the holding came down and you
were still involved.

so
A. We ... there was some additional trademarks that we registered, but not a significant increase.

ck
Q. All right. And these were in different categories such as apparel?

A. I don't know offhand.

lJa
Q. All right. So let me refresh your recollection.
ae
Mr. Voth: One moment, Your Honor.
ich
Judge Holmes: Mm-hmm.

Mr. Voth: Your Honor, actually given that it's about 12:30 maybe we could take a lunch break at
mM

this time?

Judge Holmes: Okay.

Mr. Voth: All right. Thank you, Your Honor.

a
Te

Judge Holmes: We'll resume at 1:30.

RECESS.
w.

Court Clerk: Back in session.

ww
 om
Judge Holmes: Please be seated. Back to you Mr. Voth.

n.c
Mr. Voth: Thank you, Your Honor. All right. Just as a housekeeping matter, we found a missing
page of Exhibit 662 marked for identification. May I approach the Clerk Your Honor?

so
Judge Holmes: You may.

ck
Mr. Voth: May I ask the Clerk to provide a copy to the Witness please?

lJa
Mr. Toscher: Mr. Voth are we adding this to the Exhibit or ... what are we doing ... are we
marking this separately?

Mr. Voth: No, no, no. We're adding it. I had a missing page of Exhibit 662-R marked for
ae
identification. We're just ... we got the missing page. Mr. Camp, if you can please, we're going to
be looking at Exhibit 665-P which his Mr. Roesler's original Report, specifically Page 18, the
Historical ROP Rights Revenue Chart. We're there? Okay.
ich

Mr. Voth:
Q. And Mr. Roesler please go to ... so we're at your chart on Page 18 of 655P, and if you could
mM

just go to the last line item there, L A. Gear, and please let me know when you're there.

A. I'm here.

Q. Okay. And you allocated a 25 percent ROP revenue. Is that correct?

a
Te

A. I did.
w.

Q. Okay. Please take a moment to look at Page 53 of Exhibit marked for identification 662-R,
and it's an excerpt of the Deposition, thinking of Mr. Branca in this case.
ww
 om
A. Okay. I'm familiar with it.

n.c
Q. Okay. So in essence Mr. Branca talks about how, with respect to L A Gear, the goal, even
though it never materialized, the goal was to place the clothing line at retail stores. Are you
there?

so
A. I'm kind of confused because you directed me to Entertainment Properties, and then you ...

ck
Q. Did I? Oh, I thought I was at L A Gear first with respect to historical ROP rights.

A. Okay. Maybe that's my mistake. So ...

lJa
Q. That Page 53 talks about both. ae
A. Okay. Yes, Mr. Branca's deposition. Yes.
ich
Q. Right. Okay. If we go ... well, maybe it does make sense to go first with Entertainment
Properties and then L A Gear. Thank you, Mr. Toscher. All right. Let's start with Entertainment
Properties Clothing Line on your ROP Revenues Chart, and you allocated an ROP revenue
percentage of 50 percent. Is that correct?
mM

A. I did.

Q. Okay. And then if we look at Page 53, the Exhibit 652-R, marked for identification, in
essence, it talks about how this was going to be a clothing line that was going to be primarily
a

placed at retail stores. Is that correct?

Te

A. That's correct.
w.

Q. Okay. And then going back to your historical ROP rights revenues chart ... we ... we're still at
Page 18 of your report ... and going to LA Gear now.
ww
 om
A. Okay.

n.c
Q. The last item. And that's where you're allocated 25 percent ROP revenue percentage, correct?

A. That's correct.

so
Q. And Mr. Branca stated that, in essence, the L A Gear line would have been primarily for a
retail store. Is that correct?

ck
A. Yeah.

lJa
Mr. Toscher: Your Honor, we should actually add Jack. I think we should actually read the
language. This is somebody else's deposition, so it's clear because I don't agree with Mr. Voth's
characterization.
ae
Mr. Voth: I'll be glad if you read that.
ich

Judge Holmes: Okay.

mM

Mr. Voth: Okay.

Judge Holmes: Sustained. Go ahead and read it then, Mr. Voth.

Mr. Voth: Q: All right. It will be necessary to read the prior one regarding Entertainment
a

Properties we get at . All right, so ... all right. Page 53 of Exhibit 662-R. "QUESTION: And
Te

so, for example, we're looking at Exhibit 3, Line K, Entertainment Properties. Was this
clothing line related to a specific tour?" "ANSWER: No. There's going to be a clothing line.
You know, retail stores that you can buy in Macy's or whatever." That's the first one. Did I
read that first part correctly?
w.

A. Yes, you did.

ww
 om
Q. Okay. And then if we look at Line 9, the question and subsequent answer were: "And the
same would have been true with LA Gear." "ANSWER: Yes." Did I read that correctly?

n.c
A. You do.

Q. Okay. And given this information, do you still think that it's appropriate to allocate the ROP

so
revenue percentages the way you did?

ck
A. Yes.

Q. Even if it's going to be at ... solely at retail stores with no personal services?

lJa
Mr. Toscher: Objection. Characterization. ae
Judge Holmes: Overruled.
ich
A. From the information that we had, there was ... what ... both of those were different programs.
Can I explain?
mM

Mr. Voth:
Q. No, okay. That's a sufficient explanation. Both of them were different programs. Both of them
were not related to a specific tour, correct? That's a question.

A. Would you repeat the question, please?

a
Te

Q. Both of these agreements were not related to a specific tour, correct?

A. I don't believe that's correct.

w.

Q. You don't?
ww
 om
A. No.

n.c
Q. Okay. Do you think the L A Gear line, for example, was related to a specific tour?

A. If you give me just a moment to look at my report.

so
Q. I think that might be Page 69 of your report.

ck
A. Originally, L A Gear was to be released in conjunction with the Dangerous tour, and the
Dangerous tour got delayed. And that was part of the dispute that happened.

lJa
Q. Okay. So that never happened?

Mr. Toscher: Objection. Vague,

ae
Judge Holmes: Overruled.
ich

Mr. Voth:
mM

A. Well, the tour did happen. The tour ...

Q. The merchandising in connection with the tour did not happen, correct?
a

A. Because it got delayed. That was the dispute.

Te

Q. Okay. So it did not happen in connection with the tour, for whatever reason. Is that correct?
w.

A. For whatever reason, doesn't change the reason the scope of the program whereby what
services were required of Mr. Jackson in relationship to the LA Gear program. The L A ...
Michael Jackson designed the shoes ... personally designed the shoes. They were special shoes
ww

with ... they had zipper. And he - - they were very unique shoes that he designed for LA Gear.
 om
Q. Okay. So in essence, your answer is the ROP rights percentage revenue should not be changed
in your report.

n.c
A. Yes, that's my answer.

so
Q. Okay. And if we ... let's go back to entertainment properties.

ck
A. Right.

lJa
Q. And I asked Mr. Branca whether this clothing line related to a specific tour, and he said no.
Does that change your analysis at all with respect to the ROP revenue percentage?

Mr. Toscher: Objection.

ae
Judge Holmes: Grounds?
ich

Mr. Toscher: I think it sounds misleading to me because the specific tour question relates to
Entertainment Properties, not L A Gear.
mM

Mr. Voth: I am talking about Entertainment Properties right now.

Judge Holmes: It's his question. Overruled.

a

Mr. Voth:
Te

A. Well, in my opinion, from the information I have, Mr. Branca may have misspoke about that
because the Entertainment Properties program was to be released in relationship to the Bad
w.

album. And that too got delayed, so it was all part of the overall program that Mr. Sullivan was
doing at that period of time.
ww
 om
Q. All right. So there was a distinction between an album and a tour, correct?

n.c
A. Perhaps. Yes.

Q. Yes? I mean you have an album, and you have a tour.

so
A. Yes. I said yes.

ck
Q. Okay. Qualified by perhaps. That's why I'm seeking clarification.

lJa
A. Okay. Okay, sorry.

Q. All right. Thank you, Mr. Roesler.

ae
Mr. Voth: Your Honor, respondent moves 662-R in evidence.
ich

Mr. Toscher: Objection, Your Honor. It's not admissible.

Judge Holmes: Why?

mM

Mr. Toscher: What are they offering as an admission? I guess that's...

Mr. Voth: An admission by a party opponent.

a
Te

Judge Holmes: It is.

Mr. Toscher: Okay.
w.

Judge Holmes: It's admitted.

ww

Mr. Voth:
 om
Q. Let's go back to the comparable that ... some issues there with respect to locating some
documents. And we were talking ...

n.c
A. I'm sorry. Was that a question?

Q. No, no, no, no. It was ...

so
A. Oh, I'm sorry.

ck
Q. ... a segway. So we're talking about the different comparables. And at one point, we were
talking about Marilyn Monroe, the different trade marks, and you couldn't recall some of the

lJa
trade marks that were registered.

A. Right.
ae
Q. And at that moment, I was unable to refresh your recollection, which I'd like to do now. So
ich
let's go to Exhibit 661-R, mark for identification. This is your deposition, and specifically, Page
164. And if you'll take a moment to read to yourself Lines 12 through 23 of Page 164 of Exhibit
661-R, please.
mM

A. I'm sorry, through Line 24?

Q. Yes, and please let me know when you're done.

A. I'm done.
a
Te

Q. Okay. So then ... all right. So with respect to Marilyn Monroe, you register as a trade mark in
different places of the world, correct?
w.

A. Throughout our representation, yes.

ww
 om
Q. Okay.

n.c
A. lot of different countries?

A. Yes.

so
Q. And you registered trade marks for the name, Marilyn Monroe, correct?

ck
A. That's correct.

lJa
Q. All right. Some of the main categories were apparel Class 20?

A. 25.
ae
Judge Holmes: What does class mean in this context?
ich

A. What does a class mean? In the trade mark, there are 45 different classes. Ten of them are
service categories, and then 35 are different product categories. Class 25 is apparel, 16 is paper.
mM

Judge Holmes: Excellent. Go ahead, Mr. Voth.

Mr. Voth:
a

Q. Okay. So 16 paper is another one that you did.

Te

A. Right.
w.

Q. You also registered trade marks for the fragrance class.

A. Yes.
ww
 om
Q. And from your recollection, about six to eight different classes were the ones that you tried to
register with respect to ... at least part of your deposition. Is that a rough estimate?

n.c
A. That's a rough estimate.

so
Q. Okay. Now, with respect to Marilyn Monroe and her post-mortem right of publicity revenue,
if I read your report correctly, it represents a ceiling on what Michael Jackson might have been
able to earn. Is that a fair statement?

ck
A. I think that's a fair statement, yes.

lJa
Q. Okay. And that's regardless of the different legal protection that she might receive versus the
legal protection that Michael Jackson receives, correct?
ae
A. Can we go back to that because I perhaps misspoke. I used the $3.1 million average per year
with Marilyn Monroe as a level that I didn't think that the Michael Jackson estate could achieve.
ich
But that was one of my comparable ...

Q. Okay.
mM

A. ... comparable clients.

Q. All right ...

a

A. So it wasn't ...
Te

Q. ... so it's a ceiling that you think that ...

w.

A. It wasn't a ceiling for Michael Jackson, it was a ceiling for the different personalities that we
used as comparables.
ww
 om
Q. Okay. But eventually, that you conclude that Michael Jackson could reach that ceiling.

n.c
A. Well, in our analysis of ... I believe it's 15 years of Marilyn Monroe licensing revenue ... there
was no post-death bump. And we do take into account that if you have a situation like we have
with Michael Jackson or you have a situation you have with Maya Angelou or Dale Earnhardt or

so
somebody like that that dies in ... unexpectedly under certain circumstances, there's a post-death
bump. So with respect to Michael, we said there would be a post- death bump. And so we had to
take into account how long it would take to get to that bump and how what that bump would be.

ck
Q. Okay. But I want to make sure I understand your report. The projected revenues for Michael
Jackson did not exceed the ones that you established for Marilyn Monroe, correct?

lJa
A. I'm sorry. I didn't totally understand what you just said.
ae
Q. Okay. So you ...
ich
A. My fault.

Q. No, that's fine. So you have certain ... okay. In your report, there are certain ROP revenue
mM

projections that are outlined with respect to Marilyn Monroe, correct?

A. Well, we did ... we averaged what her ROP revenue was over a 15-year period of time. And
that average was, I believe, $3.1 million. Do you want me to direct you to the page I'm at?
a

Q. I'm almost there. Just give me one moment. All right. So if we go to Page 35 of your report,
Te

the last paragraph ...

A. There's a chart on Page 36.

w.

Q. I'm sorry?
ww
 om
A. There's a chart on Page 36.

n.c
Q. I know that. So let's just go in parts and make sure we're on the same page.

A. Okay.

so
Q. So we're at Page 35, last paragraph, you state "In consideration of the foregoing, I use
Monroe's ROP rights revenue to represent a ceiling of projection value." Is that correct?

ck
A. That's correct.

lJa
Q. Okay. And then the first full sentence on Page 36 of your report, which is marked as Exhibit
665-P, you state, "In my opinion, 3.1 million is still more than Jackson could realistically
command upon his death in 2009." Is that correct?
ae
A. That's correct.
ich

Q. Okay. And you've established ... you've come to this conclusion regardless of the different
levels of protection that Marilyn Monroe had, that Michael Jackson could have, given that they
were domiciled in different parts of ... by one, one was domiciled in New York, the other one was
mM

domiciled in California. There's no question about Michael Jackson's post-mortem right of

publicity. Is that correct?

A. Well, during the ...

a

Q. I'm only asking you to answer that question. But there's no question as to Michael Jackson's
Te

status, entitlement to the California post- mortem right of publicity statute.

A. Your statement is the way you phrased it to me is incorrect.

w.

Q. Okay. Michael Jackson has a ... has protection under the California post-mortem right of
publicity statute, correct?
ww
 om
A. Correct.

n.c
Q. Marilyn does not have protection under the California post-mortem right of publicity statute,
correct?

so
A. During the period of time that we represented Marilyn ...

ck
Q. Oh, please answer my question. Does she ...

lJa
A. I am answering your question.

Q. Does she or does she not? ae

A. It's not a yes or no question.
ich

Q. Okay. Fair enough.

A. During the period of time that we represented Marilyn Monroe, and these numbers ... the
mM

numbers that are reflected on that 15-year chart, everyone was under the impression and believed
that Marilyn, who was born in California, died in California, lived in California, worked in
California, and was buried in California, was domiciled in California. We always took the
position that Marilyn was domiciled in the state of California. We always availed ourselves to the
laws of California until the Second Circuit and Ninth Circuit both came up and said Marilyn was
domiciled in New York at the time of her death because collateral estoppel kept her from taking
a

the position that she was domiciled in New York because her estate was probated in New York,
Te

and they filed affidavits ... the estate did ... saying that she was domiciled in New York. So the
Second Circuit and the Ninth Circuit said hey, you can't have it both ways. She's domiciled in
New York. So at that point in time, in 2008-2009, everyone was left scratching the head trying to
decide what to do because we're faced with a situation where Marilyn no longer had a recognized
w.

right of publicity because the Second Circuit and the Ninth Circuit, which we had to follow
because they were decisions from the Court, that we no longer had a protectable right of
publicity interest from that point on.
ww
 om
Q. From 2008 and on.

n.c
A. Yes. I mean, I think the decisions were '07-'08, something like that.

Q. Okay. So litigation ensued prior to one ... to the Court's decision, correct?

so
A. Right. Right.

ck
Q. So that means there was some uncertainty as to her rights ... her purported rights under the
California post-mortem right of publicity statute, correct?

lJa
A. Possibly. Yes.

Q. Otherwise ...
ae
A. Yes.
ich

Q. ... why go and litigate if there is no uncertainty.

mM

A. There wasn't an uncertainty on our end. We just lost.

Q. But there's a reason why you tried to pursue this.

a

A. Well, we tried to pursue it because we were certain that we had a right of publicity. We
weren't litigating the right of publicity in Marilyn Monroe. We were litigating our rights against
Te

people that were using Marilyn Monroe without our permission. So only as the litigation ensued,
was the issue of whether or not Marilyn truly had a protectable right of publicity interest. Only at
time, did it surface.
w.

Q. Right. Because other people are taking unauthorized action with respect to her right of
publicity, you and your team decided to pursue this litigation, correct?
ww
 om
A. That's correct.

n.c
Q. Okay. All right. Let's move on to James Dean. Now, with respect to James Dean, there were a
number of challenges to James Dean's right of publicity rights, correct?

so
A. That's correct.

ck
Q. Especially during the first years of CMG representing Dean's estate. Is that correct?

lJa
A. That's correct.

Q. Okay. And the same would be with Princess Diana, right?

ae
A. Yes.
ich

Q. She wasn't able to avail herself with the protection of the California post-mortem right of
publicity statute. Is that correct?
mM

A. That is correct.

Q. Okay. All right. Let's move onto Elvis. There were a number of disputes regarding his post-
mortem right of publicity. Is that correct?
a

A. I'm sorry. Can you put ...

Te

Q. Sure.
w.

A. ... that question in context?

ww
 om
Q. After Elvis passed away, you shortly started representing the estate, correct?

n.c
A. That's correct.

Q. And in your report, you identified that there were a number of disputes regarding his post-
mortem right of publicity. Is that correct?

so
A. That's correct.

ck
Q. In fact, Boxcar Enterprises controlled Elvis' right of publicity. Is that correct? They asserted
the control ...

lJa
A. That ... ae
Q. ... right?
ich
A. Correct.

Q. Okay. But here, when we're dealing with Michael Jackson, there is no question about his
mM

entitlement to the California post-mortem right of publicity. Is that correct?

A. Will you repeat the question, because you jump from ...

Q. Okay.
a
Te

A. ... from ...

Q. So we have Michael Jackson.

w.

A. Right.
ww
 om
Q. Domiciled in California.

n.c
A. Right.

so
Q. Half is a way (inaudible).

A. I ...

ck
Q. Right?

lJa
A. I think with that ...
ae
Q. Let me finish. Let me finish. And there's no question as to his entitlement to be given
protection under the California post-mortem right of publicity statute. Is that correct?
ich

A. I don't think there's any question that the California right of publicity statute controls with
respect to Michael Jackson's ROP rights.
mM

Q. Okay.

A. Just to correct the record ...

a

Q. All right.
Te

A. ... his ROP is ... because we define ROP rights as ...

w.

Q. No. And I'm using ROP. I'm going with your definition ...

A. Right. Right.
ww
 om
Q. ... to show we're on the same page, Mr. Roesler.

n.c
A. I misspoke. I misspoke. I just corrected what I said.

so
Q. Thank you. All right. So let's move on to what you call personal services, right?

A. Right.

ck
Q. And you know, it's my understanding that, in your view, personal services add value to right

lJa
of publicity while a celebrity is alive, right?

A. It can. ae
Q. It can add value.
ich

A. It can add value, yes.

Q. Okay. Yeah, but an estate can also provide something similar to personal services, correct?
mM

A. That's correct.

Q. Okay. Like through the use of a hologram.

a
Te

A. Perhaps. You know, I mean I need a lot more information to definitely answer that, but
holograms are an option for ... you know, one of the new technology out there that is available.
w.

Q. As a quasi-substitute for personal services given that the celebrity has passed away. Would
that be a fair statement?
ww
 om
A. Well, I don't know that it's a fair statement to quasi-substitute it. It can ... we do a lot of
different hologram programs with our different clients. We've ... the technology is not new, it just
keeps getting better.

n.c
Q. All right. But would a hologram be something similar to providing personal services?

so
A. No. I wouldn't consider that as similar.

ck
Q. Okay. So I'd like to draw your attention to your deposition.

Mr. Voth: And we're looking at ... Mr. Camp, we're looking at Pages 126 through 127, and I'm

lJa
going to start with Page 126, last line, number 25. I asked you the following question: "What
about the use of a hologram of a deceased celebrity? Would that be something similar to
providing personal services?" "ANSWER: Sure. Sure." Did I read that statement correctly? I'm
only asking you ...
ae
A. Yes.
ich

Q. ... if I read it correctly.

mM

A. Yes.

Q. Thank you.

Mr. Toscher: Your Honor, I'm going to object. He's just reading part of this. The Court we're
a

going to do it in redirect.
Te

Judge Holmes: Yes, it will. Go back, Mr. Voth.

w.

Mr. Voth:
Q. And something similar to personal services, assuming you have the rights, could it be the
video from a celebrity's movie, correct?
ww
 om
A. I'm sorry. Are we still on this page or ...

n.c
Q. Well, I'm asking you first, and if necessary, I'll refresh your recollection. But during your
deposition, you stated that a video from a celebrities' movie, assuming you have the rights to the
video to exploit, would be something similar to providing personal services for a deceased client.

so
A. I would be very surprised if I ever made a statement like that.

ck
Q. All right. So let's turn to Pages 125 through 126 of your deposition.

lJa
A. Okay.

Q. All right. I'm going to read page 126, starting with Line 4.
ae
Mr. Voth: One moment, Your Honor. All right. Given that there's a lot going on, I'll summarize,
ich
and Mr. Toscher can object if he thinks my summary is not accurate.

Mr. Toscher: I don't know what he's doing.

mM

Mr. Voth:
Q. All right. So we're at his deposition. We're looking at his deposition. We're looking at Exhibit
661-R, Pages 125 to 126. And so I asked you the following question: "What I'm trying to
understand is whether there are any substitutes in lieu of the ability to provide personal services
that a deceased client can provide for their licensee, for example." "ANSWER: Well, I'm sure
a

there are substitutes, yes." Did I read that part correctly?

Te

A. You read what's up on the screen.

w.

Q. Okay. Then a yes.

ww
 om
A. Yes.

n.c
Q. Okay. All right. Let's move on to some ... what some parties might think are foreseeable
events and others don't. And for a moment, let's leave aside the parties differences as to what is
included within their right of publicity. So let's take the Broadway play. You're aware that
representatives for Michael Jackson signed an agreement prior to his death to develop a

so
Broadway plan.

A. Yes. I'm aware of that agreement.

ck
Q. Okay. And it was not incorporated into your projection because you think Broadway plays are
not part of right of publicity, correct?

lJa
Mr. Toscher: Your Honor, counsel just informed me he was alive when he signed that
agreement. So I don't know whether ...
ae
Mr. Voth: I thought I said prior to Michael Jackson's death.
ich

Mr. Toscher: But you said the estate.

mM

Judge Holmes: Oh, just ...

Mr. Voth: I said representatives for Michael Jackson ...

Mr. Toscher: Okay.

a
Te

Mr. Voth: ... meaning.

w.

Mr. Toscher: I misunderstood, Your Honor.

Judge Holmes: Okay.

ww
 om
Mr. Voth: He had several attorneys and ...

n.c
Judge Holmes: Okay. You can ...

so
Mr. Voth: ... managers. Okay.

Judge Holmes: ... ask the questions, Mr. Voth.

ck
Mr. Voth:

lJa
Q. All right. So the answer was yes to my question regarding you were aware of ...

A. Yes. Yes.
ae
ich
Q. Okay. And it wasn't incorporated into your projections because you don't consider that a part
of right of publicity in the first place, correct?

A. Right. That specific Broadway play?

mM

Q. Just in general.

A. Broadway plan, in your review, should not be a part of right of publicity, correct?
a
Te

A. There are different components to something like a play. I anticipated, in my projections, that
over the ensuing ten years that the ROP rights could generate as much as $22.25 million. So I
anticipated different revenue being generated from different sources. There could be ... you
know, if a play was happening, they could be selling tour merchandise, or merchandise for the
w.

play or whatever. So I would say it was ... I would say any such merchandise would have been
incorporated within my projections.
ww
 om
Q. Okay. And so the same would be with ... a Michael Jackson themed show, Cirque Du Soleil,
would be included in your projections solely with respect to merchandise.

n.c
A. That's correct.

Q. Okay. Now, as another source of your future revenue, did you include video games?

so
A. Video games are probably exempt under the 3344.1(8)(2).

ck
Q. Okay. So you did not include video games as part of a source as you just stated of your future
ROP revenue projections, correct?

lJa
A. I looked at it that if you were the rational investor, owning the ROP rights and associated
trade marks, that there are uses that you could claim a nominal value to where someone would
ae
want to clear the rights for you for uses that were uncertain. And as we've identified, there are,
with respect to the ROP rights, there are various uses that are uncertain out there that people will
pay a certain amount of money to pay you for any possible claims that might come about. So any
ich
time you're negotiating between a licensor and a licensee, the scope of the rights are taken into
consideration. The more solid your rights are, the more you're able to command. The less solid
they are, the less you're able to command.
mM

Q. Okay. And then I just want to make sure the record is clear ... at least it wasn't clear to me ...
whether you did include video games as a source of revenue projections in your report.

A. I considered any rights, clearances that you could get for various uses, including video games,
in my projection.
a
Te

Q. Including video games. All right.

A. Including video games, yes.

w.

Q. Now, at our deposition, we talked about how you can have a video game of Michael Jackson
with just his music, right?
ww
 om
A. Yes.

n.c
Q. Perhaps with just his name and likeness.

so
A. Yes.

Q. Perhaps with both, correct?

ck
A. Right.

lJa
Mr. Voth: And Mr. Camp, can you please pull up Exhibit 236-J. We are going to be looking at
Paragraph 3 of that exhibit. And if you can show Mr. Roesler Page 1 to see if he's familiar with
this document?
ae
Mr. Voth:
ich

Q. Are you familiar with the Estate Bravado Term Sheet, Mr. Roesler?
mM

A. Generally. It's been awhile since I looked at it, but ...

Q. Okay.
a

Mr. Voth: And Mr. Camp, if you can go to Paragraph 3.

Te

Mr. Voth:
w.

Q. And if you'll notice, the Estate of Michael Jackson specifically retained the rights to exploit
Michael Jackson's name and likeness in possibly video games and (inaudible). Is that correct?
ww
 om
A. That's correct.

n.c
Q. Okay.

Mr. Voth: And Mr. Camp, can you pull up Exhibit 267-J.

so
Mr. Voth:

ck
Q. And if you can go to the schedule, which talks about what's being licensed. This is a ... we're
looking at a UV Saw video game contract.

lJa
Mr. Toscher: I don't want to interrupt, Mr. Voth. This is post-data of our continuing objection for
relevancy not pursuant. ae
Judge Holmes: That's noted.
ich
Mr. Camp: You have a page number by any chance, or is it just at the end?

Mr. Voth: Right there.

mM

Mr. Voth:

Q. Exhibit
a

A. So if you like licensed property, this would be an example of a video game where it's Michael
Te

Jackson's name, likeness, and music. And if you could take a moment to look at the first
paragraph there, right space on Michael Jackson. Is that a fair statement?
w.

A. I'm sorry. Is what a fair statement?

ww

Q. That the video game is based on Michael Jackson's name, likeness, and his music.
 om
Mr. Toscher: Objection. Incomplete. There's more there.

n.c
Judge Holmes: Overruled. But read it in its entirety before you answer, Mr. Roesler.

so
Mr. Voth:

A. This contract does include the right of publicity.

ck
Q. It does. Okay.

lJa
A. Yes.
ae
Q. All right. Let's move to some of CMG's clients. Now, you typically don't represent a deceased
client unless you can do so on a worldwide basis, correct?
ich

A. Typically.

Q. Okay. You used the word typically, so the answer would be yes.
mM

A. Yeah. I'm sorry, yes.

Q. Thank you, Mr. Roesler. So for example, if James Dean is one of your clients, it wouldn't
a

make sense to have different agents around the world pursuing different intellectual property
aspects to exploit.
Te

A. We ... generally, we represent clients on a worldwide basis, and don't have supp agents.
w.

Q. Okay. Now, in this case, even though Michael Jackson's name and likeness can be exploited
in a worldwide basis, you limited your analysis of Michael Jackson's right of publicity to the
California post-mortem right of publicity statute and any associated trade marks. Is that correct?
ww
 om
A. No. I ... no, I don't. No, that's not correct.

n.c
Q. If I were to have gone over this, so let's make sure we're on the same page. We talk about the
framework upon which you ... in your analysis, which includes the protection afforded by the
California post-mortem right of publicity statute, coupled with associated trade marks. Is that

so
correct?

A. That's correct.

ck
Q. And you said that regardless of whether these ... whether his name and likeness is exploited

lJa
worldwide. Is that correct?

A. I think that ...

ae
Q. His right of publicity to make sure we're on the same page.
ich

A. That's right.

Q. Okay. I'd like to talk to you about deceased clients from an agent's perspective,
mM

something that I'm pretty sure you have a lot of experience with. Would it be fair to say
that one of the benefits of the deceased client is that you don't have to worry how they
might behave.

A. Well, I ... you could characterize it like that. I probably wouldn't use those same words,
a

but you could characterize it like that.

Te

Q. So is that a fair statement?

w.

A. It's not unfair.

ww
 om
Q. It's not unfair. All right. So let's go to Page 89 of Exhibit 661-R, which is Mr. Roesler's
depo. And I'm looking at Lines 19 through 23.

n.c
Mr. Voth: We're at Page 89, Steve.

Mr. Camp: Thank you.

so
Mr. Voth:

ck
Q. Lines 19 through 23: "QUESTION: Is there a benefit that you don't have to worry about what
a living celebrity, you know, how he might behave in public, for example." "ANSWER: Well,

lJa
that's an advantage ... an advantage from my standpoint as an agent." Did I read that
portion correctly?
ae
Mr. Toscher: Your Honor, I'm would object. He's not impeaching the witness, he's just reading
his statements and the witness answered that he accepted that statement. He may rephrase it. But
you can ... I just objected because I just don't think it's proper impeachment and he's got to take
ich
his word as his own .

Judge Holmes: Are you trying to show a contradiction here somewhere, Mr. Voth?
mM

Mr. Voth: At least it was my understanding that Mr. Roesler was qualifying what he stated at his
deposition.

Mr. Toscher: I don't think his testimony was entirely consistent with his deposition.
a
Te

Judge Holmes: From this point yet. That means no more misbehavior, right? For the most part,
yes. Ask the obvious question.
w.

Mr. Voth:
Q. For the most part?
ww
 om
Judge Holmes: Thank you.

n.c
A. Yes. I mean you can always bring out scandals, but the deceased personality obviously can't
do anything from that point forward. There can't be any new controversies.

Mr. Voth:

so
Q. Okay. So there can't be any new controversies. And a company like yours would seek to
control how his image is betrayed of a deceased client.

ck
A. I ... I'm not ...

lJa
Q. You would want to portray for deceased client in the best possible light, correct?

A. That's correct.
ae
Q. Okay. Thank you. All right. Let's move on to Pages 24 and 25 of your original report marked
ich
as 655-P. Okay. So this section deals with Jackson's weighted average yearly ROP rights revenue,
correct?

A. Yes.
mM

Q. Okay. I just want to make sure I understand your analysis. So you first looked at Jackson's
ROP rights revenue over approximately a 30- year period. Is that correct?
a

A. That's correct.
Te

Q. You have separated the 30-year period into four categories.

w.

A. Yes.

Q. Each category was assigned a different weight based on relevant.

ww
 om
A. They ... not based on relevance, but based on timing.

n.c
Q. Based on timing. Okay.

so
A. The most ... highest weight was given to the most recent periods in ... on ...

Q. Meaning you allocated the highest weight to Category 4, right?

ck
A. 40 percent weight.

lJa
A. That's right.
ae
Q. That would be the period from November 19, 2003 to June 25, 2009. Is that correct?
ich
A. That's correct.

Q. Now, your report does not discuss any management changes that took place between 2003
and 2009. Is that correct?
mM

A. That's correct.

Q. The same would be true with respect to 2008 and 2009, correct?
a
Te

A. Correct.

Q. All right. So at one point, you had Tohme Tohme, right?

w.

A. Correct.
ww
 om
Q. And Frank DiLeo, correct?

n.c
A. Correct.

Q. And you had Michael Kane, correct?

so
A. Well, when you say ...

ck
Q. Employed as an accounting manager.

lJa
A. ... when you say you had them, I guess I'm not sure exactly ...

Q. So Michael Jackson had these different managers, right?

ae
A. They ... I believe they played some role, but I'm not sure exactly what role everyone played ...
ich

Q. Okay.

A. ... in that period of time. I'm generally familiar with that period of time, but I don't know - -
mM

Q. Exactly what role they play.

A. Yes. I don't know.

a
Te

Q. Fair enough. Were you aware that Michael Kane testified that Michael Jackson, through a
variety of reasons, missed several rehearsals?
w.

A. I can't say I have specific knowledge ...

Q. Okay.
ww
 om
A. ... of that testimony.

n.c
Q. You're also not ... I'm assuming you're not aware that Michael Jackson ... Michael Kane
testified that Michael Jackson missed several meetings right before his death. You're not aware of
that?

so
A. If I heard it, it went in one ear and out the other.

ck
Q. Okay. Then right before Michael Jackson passed away, he hired Mr. Branca again. Are you
aware of that?

lJa
A. I am.
ae
Q. Okay. Were you aware that Randy Phillips, in essence, testified that Michael Jackson was
worth more dead than alive?
ich

A. I don't ... no. I can't say I'm aware of ...

Q. Okay, if you're not aware, you're not aware. Michael Jackson was his worst own enemy, in
mM

essence?

Mr. Weitzman: I'm sorry. I couldn't understand what Mr. Roesler said.
a

Mr. Toscher: I didn't understand what you said either, Mr. Voth.
Te

Mr. Voth: Sure. I'll rephrase that, yeah. Thank you, Mr. Weltzman.
w.

Mr. Voth:
Q. And in essence, Michael Jackson was his own worst enemy at times? Are you aware of that?
ww
 om
A. I'm sorry, who said that?

n.c
Q. Randy Phillips.

A. I'm not specifically aware of that specific statement.

so
Q. Were you aware that John Branca was deposed in this case?

ck
A. Yes.

lJa
Q. Did you review that transcript for the deposition?

A. I reviewed summaries of the notes from that deposition from my ...

ae
Q. Okay.
ich

A. ... that my staff prepared.

Q. And were you aware that Mr. Branca testified that Michael Jackson had incompetent
mM

management during a lot of the years that you're referring to in Category 4?

A. I'm aware that Mr. Branca made different comments about his ... some of the different people.
a

Q. Right. No. I don't care to say those in public. All right. So you placed the highest weighting
on the later years of Michael Jackson's life, correct?
Te

A. That is correct.
w.

Q. And made the assumption that Michael Jackson was relatively well-represented by competent
management during that time, correct?
ww
 om
A. I did.

n.c
Q. And made the assumption that Michael Jackson was also motivated to do the best job he
could to exploit his intellectual property rights during that time, correct?

so
A. I did make that assumption.

ck
Q. Michael Jackson did have competent management and wasn't sabatoging his own success ... if
that's something that the Court determines, for example ... in the years prior to his death, is it fair
to say that he would have been able to generate more revenue?

lJa
A. I concluded that it was very difficult to overcome his extremely low marketability because of
the two child molestation incidents.
ae
Q. But I'm referring to the specific management involved.
ich

A. Whether ...

Q. So you don't ... so ...

mM

A. ... whether he had ... whether ... whatever management he had, whether I was involved,
whether Mr. Branca was involved, whoever was involved, my conclusion was the same. I
assumed that Michael was always motivated to generate as much revenue as he could. He needed
to. He had to.
a
Te

Q. All right. So is it your position that if you have, let's say, someone like Tohme, Tohme,
someone called a novice who was zero experience in this industry, and someone who has a lot of
experience, to fill your position to slide some of the taint associated with Michael Jackson, there
would be no material difference?
w.

A. In Michael Jackson's case, I don't think there would have been any material difference.
ww
 om
Q. Regardless of who's managing him.

n.c
A. Regardless of who's managing him.

so
Q. Let's assume, for a second, that it's determined that Michael Jackson did not have competent
management, and was not motivated or capable to exploit his name and likeness assets during the
period you've identified as Category 4, that would mean that your projections understate the
future revenue potential that could be reasonably exploited from Michael Jackson's name and

ck
likeness, correct?

lJa
Mr. Toscher: Objection. Incomprehensible.

Judge Holmes: Overruled.

ae
Mr. Voth:
ich

A. Can I ask in a hypothetical if there were still the ... there were or weren't child molestation
taints still in ...
mM

Q. No. I mean ...

A. I mean that's ...

a

Q. ... that's still in place. That's not in dispute.

Te

A. ... still in place?

w.

Q. Yeah.

A. Okay. Okay. So the ...

ww
 om
Q. So ... do you want me to repeat the question or ...

n.c
A. No. I think that the child molestation issues overwrote everything.

so
Q. Even if it's determined that Michael Jackson was not motivated or capabable to exploit his
intellectual property assets as was your assumption? That's your conclusion?

ck
Mr. Toscher: Objection. Mischaracterization.

lJa
Judge Holmes: Overruled.

Mr. Toscher: He called it an assumption. It was Mr. Voth's hypothetical. Those are two separate
things.
ae
Judge Holmes: I would sustain. Sustained.
ich

Mr. Voth: If I may, Your Honor, I think Mr. Roesler said that ...
mM

Judge Holmes: He said Michael Jackson had bad management towards the end of his life in
Phase 4 of what you identify as the four phases of his adult career, correct?

MR. ROESLER: I don't know that it was bad management. I don't ... I never assumed it was
bad management. I know ... he had different people involved in his management. And Michael
a

was a perfectionist, so he had reasons to pick different people. I can't second guess him, from my
standpoint.
Te

Judge Holmes: Fair enough. But the ability of Mr. Jackson to exploit his right of publicity
during the Phase 4, as you identified of his adult career, was hampered or diminished by the child
w.

molestations charges, right?

MR. ROESLER: Yes.

ww
 om
Judge Holmes: Now, if we were to say that Mr. Jackson had good management, like his estate
had before he died, but was still plagued by the child molestation charges, would his rate of

n.c
publicity have been worth more or less than if he had had bad management during those same
years?

so
MR. ROESLER: Because of the child molestation accusations, the evidence that I saw from
different people that did not want to do business with Michael Jackson, I don't believe it would
have made any difference.

ck
Judge Holmes: There you go. Mr. Voth.

lJa
Mr. Voth: Can I say something? And Your Honor, the example given by ...
ae
Judge Holmes: He's saying you can't kill a corpse.

Mr. Voth:
ich
Q. But leaving aside competent management the same would be the case with respect to Michael
Jackson's purported desire to exploit his intellectual rights, that your answer would be the same. I
just want to make sure that's clear for the record.
mM

A. I've never heard in my 37 years in this business of someone that says they don't want to be
able to exploit what they exploit to earn a living. I mean it's just a ... it's not a realistic
hypothetical.
a

Judge Holmes: What, there are no Greta Garbos in your business?

Te

MR. ROESLER: Well, what happens is I represented Greta Garbo's estate.

w.

Judge Holmes: Future heirs want to be alone.

Mr. Voth:
ww
 om
A. You know, it's ... sometimes you have situations, like Robin Williams.

n.c
Q. Mm-hmm.

so
A. And they say they ... when they pass away, they don't want to exploit their right of publicity
for a certain period of time. And sometimes in the overall scheme of what someone is trying to
accomplish, the exclusive-type nature of how they want to protect and ... protect their rights, they
can be like Greta Garbo and say I'm going to disappear. Betty Page disappeared. So some of

ck
these people do disappear, but from a long-term perspective, there's still a value to their
intellectual property rights, and there's a thought process on what they want to do. I see no
evidence that Michael Jackson, who needed the money, didn't want to exploit his intellectual

lJa
property rights during that time.

Q. But in your report you don't state ... let's assume incompetent management was in place and
ae
this is historical ROP rights revenue that we going to attribute to this Category 4, correct?

A. I thought we answered that. The ...

ich

Q. Just making sure it's clear for the record.

mM

A. Okay. Will you repeat it again?

Q. The report does not state that there ... you assume that there's incompetent management in
place with respect to Category 4, correct?
a
Te

A. That's correct.

Q. Okay.
w.

A. I did not assume that.

ww
 om
Mr. Voth: Thank you

n.c
RECESS.

Judge Holmes: Back on the record. All right, Mr. Voth.

so
Mr. Voth: No further questions, Your Honor.

ck
Judge Holmes: All right. Redirect, Mr. Toscher?

lJa
Mr. Toscher: Your Honor, can I have a few minutes to talk to my team?

Judge Holmes: You didn't?

ae
Mr. Toscher: Well, they were running around going to the restroom and ...
ich

Judge Holmes: Thank you for sharing, Mr. Tauscher.

Ms Cohen. We weren't prepared.

mM

Judge Holmes: We can go off the record, consult with your team.

Mr. Toscher: Thank you.

a
Te

RECESS.

Mr. Toscher: Thank you. Can you pull up Exhibit 19-J, please?
w.

REDIRECT EXAMINATION
ww
 om
Mr. Toscher:

n.c
Q. Mr. Roesler, as he's putting that up, I think Mr. Voth asked you about a proposed Broadway
play, and we're going to put up what was a contract entered into by Michael Jackson, and you
may know from memory, are you familiar with ... did you review that contract?

so
A. ..Was it that the Nederlander contract?

ck
Q. I believe so.

A. Yes, at some point I saw that, yes.

lJa
Q. Okay. ae
Mr. Camp: Sorry about that.
ich
Mr. Toscher: No problem.

Mr. Toscher:
mM

Q. It says DO memorandum, Nederlander presentations, MJJ Kingdom, attention Dr. Tohme

Tohme. Now, you ... is this ... did you ... have you ... did you review that contract?

A. Yes, I did.
a

Mr. Toscher: Can we get a date on that Josh, where it's signed, when so ... just for the record
Te

here. I know it's in the thing, just for my own purpose, Exhibit 19-J.

Mr. Toscher: Yes, normally. There was a fax number up there go back. Sorry, Your Honor. Go
w.

back up, there was a fax, close enough for my purposes. Okay.

Ms Cohen. That's close, but that's not right. There's a signed ... signature at the end.
ww
 om
Mr. Toscher: Okay. Can we find the signature page?

n.c
A. There was definitely a signature page.

so
Mr. Toscher:
Q. Did you review that contract in connection with the preparation of your report, Mr. Roesler?

ck
A. Yes, I did.

lJa
Q. Okay. What was ... what were they seeking from Michael Jackson? Were they seeking to use
his right of publicity rights?
ae
A. They were looking to license his music for the musical and they ... I believe they wanted to
use Thriller.
ich
Q. Okay. So they were looking for musical rights, not his name and likeness rights, or not his
rights of publicity.
mM

Mr. Voth: Objection. Leading, Your Honor.

Judge Holmes: Sustained.

Mr. Toscher: Okay.

a
Te

Mr. Toscher:
Q. I'll ask it again. So the, just for the record, the document is dated October 2008, do you know
whether this contract was seeking to use any of his rights of publicity, as you've defined them?
w.

A. My reading of the contract was that they were looking to use his music.
ww
 om
Q. Okay. And are his musical rights, in your judgment, separate and independent from his right
of publicity rights?

n.c
A. They are.

Q. And just ... I think I asked this at the beginning, did you take this into account, you had

so
reviewed this in connection with your report?

ck
A. I did.

Q. I would like to take you to Page 31 of Mr. Roesler's report, which is Exhibit 31 to 32, the

lJa
discussion regarding Princess Diana, Mr. Roesler. You were asked some questions regarding
Princess Diana, would you describe for the Court, did you, and CMG ever represent the interest
of Princess Diana's Estate regarding her rights of publicity?
ae
A. We did.
ich
Q. Okay. Would you summarize what you did, and then I will ask you some questions.
Generally, what's contained in your report, Pages 31 to 32?
mM

A. Well, we were asked to try to protect her intellectual property rights from the various
exploitations that were taking place shortly after her death, and we began ... we represented them
for a number of years. And I'm sorry, I'm not sure what you ...

Q. Okay. General ... that was a good opening as to just what you were doing. So was there
a

some ... well, you used Princess Diana's Estate as a, one of your comparables. Is that correct?
Te

A. That's correct.
w.

Q. Okay. Explain to the Court why ... the reasons you thought it was comparable, as part of your
analysis.
ww
 om
A. Well, it was similar to Michael Jackson's death in the sense it was shocking from a worldwide
standpoint. People all over the world closely followed the circumstances of the tragic accident
that killed Princess Diana. And there were ... there was a phenomenal media frenzy that occurred

n.c
after her death, and we were forced to deal with that, both in terms of trying to address what we
thought were various unauthorized uses and that ... so that's what we did.

so
Q. Okay. Did there come a time when you were involved in any litigation regarding Princess
Diana's right of publicity rights? If so, tell us what that was about.

ck
A. Well, they ...

Q. They?

lJa
A. The Princess Diana Estate. There were a number of law firms involved and one of the law
firms retained a firm here in Los Angeles to go against a company called The Franklin Mint that
ae
was making ... they had made various collectibles featuring her image from collectible dolls to
plates to figurines and the like. And they filed an action alleging the unauthorized use of her
name and likeness, and they attempted to utilize 3344.1 and they ... the Courts ultimately held
ich
that she was domiciled in the U.K. at the time of her death and didn't have a right of publicity.

Q. Let's turn to Appendix D. I'm sorry, E, of your report, if you would. This may be one of the
ones that are under seal, Your Honor. So you don't need to ... Judge you have a copy of the
mM

.. so you can look and the government has, Appendix E, Page 8.

Mr. Toscher: No, don't put it up. I don't ... if we're going to go under seal I don't know who's in
the courtroom.
a

Mr. Toscher:
Te

Q. This is a schedule of various comparables. Do you have it in front of you, Mr. Roesler?
w.

A. I do.
ww
 om
Q. Okay. So I see under ... make sure I have this here, where is ... Okay. I don't know, 6th column
over, Princess Diana. So I see there are certain revenues generated starting in 2000 all the way
through 2008. Could you describe ... and then it stops. Can you describe why the revenues

n.c
stopped?

A. The revenues stopped after the decision came down that Princess Diana couldn't enforce her

so
right of publicity and there was ultimately a judgment against the Princess Diana Estate for, I
believe it was close to $20 million and ...

ck
Q. Stop right there for a second, a judgment against Princess Diana's Estate for 20 million?

A. Yes.

lJa
Q. Okay. So let's make sure we all understand. Princess Diana's Estate was trying to stop the
Franklin Mint from making these various commemorative, or these various pieces?
ae
A. That's correct.
ich

Mr. Voth: Objection. Leading.

mM

Mr. Toscher:
Q. So how did Franklin Mint ...

Judge Holmes: Well, hold on. Rephrase. That ... the objection is sustained.
a

Mr. Toscher: I'm sorry. I didn't hear the ... what was the objection?
Te

Judge Holmes: Leading again.

w.

Mr. Toscher: Ah.

ww
 om
Mr. Toscher:
Q. Who was the plaintiff in that action, Mr. Roesler?

n.c
A. The plaintiff was the Princess Diana Memorial Fund.

so
Q. Okay. And they were bringing an action against who, and for what reason?

A. They brought an action against the Franklin Mint for these unauthorized use of the name and

ck
likeness of ...

lJa
Q. And you testified ...

A. ... Princess Diana. ae

Q. ... previously that the Franklin Mint prevailed in that suit.
ich

A. The Franklin ... yes. The Franklin Mint prevailed, and under 3344.1 there is a mandatory
attorney fee provision, so there was an award of attorney fees. I was involved in trying to
negotiate a settlement for those fees because unless it was settled the Princess Diana Memorial
Fund would have to close because that was basically all the money they had. So we weren't
mM

ultimately successful in a resolution for a host of different reasons and the Princess Diana
Memorial Fund paid the entire amount of that judgment and closed down after that.

Q. Was a judgment made to try to protect her rights through other laws, other than 3344.1?
a

A. We registered a number of trademarks, actually quite a few trademarks for Princess Diana.
Te

Q. And were you able to successfully continue to monetize through the registration of those
trademarks?
w.
ww
 om
A. No. We were ... it got to the point where they couldn't pay any additional fees to us because
they had no additional monies after this litigation proceeded and so they completely stopped all
efforts to try and protect her name and likeness.

n.c
Q. And that was because of the Court's determination that the memorial fund, the Princess Diana
Memorial Fund did not have the protections of California Civil Code 3344.1?

so
Mr. Voth: Objection. Leading, Your Honor.

ck
Judge Holmes: And sustained.

lJa
Mr. Toscher: I'll rephrase.

Mr. Toscher:
Q. What was the holding of the Court?
ae
ich
A. The holding of the Court was that Princess Diana was domiciled in the United Kingdom at the
time of her death and therefore since she wasn't domiciled in California, she could not avail
herself to 3344.1, and therefore there was no right of publicity of Princess Diana.
mM

Q. Okay. In your report ... and did you take into account laws in addition to 3344.1 and
associated trademarks in terms of analyzing Michael Jackson's right of publicity?

A. We did.
a

Q. And did you take into account the possibility of the use of other state laws to protect the right
Te

of publicity, a state other than California?

A. We did.
w.

Q. How would you compare California's law to laws of other states in terms of protecting the
rights of publicity? And give some examples, or if you have a general statement on that.
ww
 om
A. Well, my general overview of it is probably the leading, certainly the leading law to protect
the rights of deceased personalities is here in California because the evolution of the fact of so

n.c
many celebrities being based here in California it's important, as the original statute in 1985 was
enacted, and it was later revised. It was originally called Section 990 and it was revised to 3344.
The original length of time of protection was 50 years, and then it was extended to 70 years to
coincide with the copyright protection. So California is one of the better laws. We have a right of

so
publicity statute in Indiana.

ck
Q. Tell us a little bit about that. How does it compare to California?

A. It's a little more expansive. It will last for 100 years after the death of a celebrity. There is a

lJa
provision in there that it applies regardless of domicile for an act or omission that occurs in
Indiana. We haven't necessarily been ... we weren't successful when Marilyn ... trying to apply
the Indiana right of publicity law. We tried ...
ae
Q. I'm sorry. You weren't successful with Marilyn Monroe?
ich
A. That's correct. And ultimately the cases were transferred to the 2nd Circuit and the 9th Circuit.
There were a series of cases that were originally filed in Indiana so we could avail ourselves to
Indiana's right of publicity law because it applied regardless of domicile for the act or omission
that occurred in Indiana. So the reality of it is, I mean there are a few statutes out there,
mM

Washington also has a statue that applies regardless of domicile. They haven't really been tested
except for Indiana, and so there are a lot of risks involved in enforcing the right of publicity.

Q. And your business, in terms of you're all - - you're called at times to protect your clients'
rights, ROP rights?
a
Te

A. That's correct.

Q. And you feel ... do you feel that the better protections are in the state of California, for
w.

somebody who's domiciled in California?

ww
 om
A. Well, certainly for somebody that's domiciled in California. I mean that's the, you know, that's
the first test that you have to look towards, where are they domiciled. And you're, you know, it is
what it is. You, you know, if you're domiciled here in California you're going to have to try to

n.c
take advantage of these.

Q. One more state, are you familiar with ... does Nevada have a right of publicity law?

so
A. They do.

ck
Q. How does that compare with California law?

lJa
A. It's ... it was passed after the California right of publicity statute. It's actually ... we were
involved with that, but we didn't necessarily agree with all the exemptions. It's a little broader
than California and it actually ... it was passed by ... it had a lot of input from the various venues
in Nevada and has a lot of protections for performances in Nevada specifically, it excludes any
impersonation shows.
ae
ich
Q. Okay. So when you said ...

A. And ...
mM

Q. ... broader, you meant broader for who?

A. I'm sorry. Broader for ... broader exemptions.

a

Q. Okay. Okay. Just want to make sure exactly. Did you also consider in terms of your
Te

report, various protections under international law?

A. We did.
w.

Q. And what is your ... maybe you can give us the lay of the land of your understanding of the
protections of ROP rights internationally.
ww
 om
A. Well, it's difficult sometimes. You know, different countries are different. We fought a number
of battles, high profile battles. Worked with the U.S. Trade Representative's office in Korea,

n.c
ultimately didn't prevail on a major apparel company that had a whole line of James Dean
products. We spent a lot of money and a lot of time and had a lot of government assistance trying
to help us protect ... protect that over in Korea. So ...

so
Q. And what ... why was that? Why didn't you prevail, in a nutshell?

ck
A. Someone else registered trademarks for James Dean and we could never undo that.

lJa
Q. What about his right of publicity?

A. They didn't specifically recognize a right of publicity, so we had to rely on any trademark
rights that we had.
ae
Q. Okay. Do you have any other personal knowledge of familiarity with, leaving aside the
ich
Princess Diana case in the U.K., well, let's see. Do you know what the right of publicity rights
are in the United Kingdom?
mM

A. They don't exist.

Q. Okay. And are you familiar with any other foreign countries?

A. Sure.
a
Te

Q. Can you give us just one or two other examples?

A. Germany protects the name and likeness for 10 years after someone's deceased. Brazil has a
w.

decent right of publicity protection. So there's a hodgepodge of countries as they develop and
they recognize the value of their, I guess celebrities, especially within their own countries, that
are gradually expanding this protection for right of publicity.
ww
 om
Q. Okay, I'll ask you the same question I did in comparison to California with other states. How
does California compare with the foreign countries protections of a celebrities, or the deceased

n.c
celebrities' rights?

A. California is much better than any other country.

so
Q. More protective of the deceased celebrities' rights?

ck
A. That's correct.

lJa
Q. Okay. Okay.

A. topic has come up, and you've mentioned it before and I think it was, Mr. Voth was
ae
questioning you regarding the Cirque du Soleil show and he talked about a film. But before we
get there, we talked about the Nederlander contract, exhibit, I think it was 19-J, and that was for,
I believe ... what was that for? Was that for a play?
ich

A. A ... I believe a Broadway musical.

mM

Q. Okay. And you testified what you thought they were seeking there. So ... and I think, I believe
you testified they were not seeking ROP rights of, Mr. Jackson. Did they need to get a license
for, Mr. Jackson's ROP rights to produce a Broadway play?

A. No, they did not.

a
Te

Q. Why not?

A. Because California Section 3344.1(a)(2) specifically exempts plays from any right of
w.

publicity.
ww
 om
Q. Okay. I'm not going to flash that up on the screen because I don't know where it is right now,
but what is your understanding as to why (a)(2) exempts something like a play or a play?

n.c
Mr. Voth: You Honor, respondent objects to this line of questioning. It has to do with legal
analysis.

so
Judge Holmes: It does. Sustained.

ck
Mr. Toscher: Your Honor, it's part and parcel of his opinion.

Judge Holmes: You can ask him why he has it, then after you establish what he thinks it is.

lJa
Mr. Toscher: Okay. All right thank you. ae
Mr. Toscher:
Q. The ... do you have an understanding in your practice of the exemptions under 3344.1(a)(2),
ich
do you deal with that in your practice, sir?

A. I do.
mM

Q. Okay. And is that, (a)(2) is that sometimes referred to as the media exemptions?

A. It is.
a

Q. Generally, what does (a)(2) exempt from the protections of 3344.1?

Te

Mr. Voth: Respondent renews its objections, Your Honor.

w.

Judge Holmes: It's also sustained.

ww
 om
Mr. Toscher: Okay.

n.c
Mr. Toscher:

Q. The ... your ... let me ask you a question. I think you answered that they could have put on a
play, such as the Nederlander program without seeking the ROP rights. Why did you reach that

so
conclusion?

ck
A. Because of the California right of publicity statute, which specifically has media exemptions
for works that really fall under First Amendment protection.

lJa
Q. Okay. But in addition to ... leaving aside First Amendment protection does the statute
except ... itself exempt those types of works?
ae
Mr. Voth: Again, you Your Honor, that calls a legal conclusion.
ich
Judge Holmes: That's sustained as well.

Mr. Toscher: Okay.

mM

Mr. Toscher:

Q. Okay. So we answered the question on the Broadway play. You were asked some questions
regarding the Cirque du Soleil show.
a
Te

Mr. Toscher: And can we go to Exhibits 567, 568 and 570, which were displayed during cross-
examination? Okay that's ... let's go to the next one. That's the first one, thank you. Go to five ...
yes, thank you. Take the This Is It out and let's just stay with Michael Jackson Immortal. Okay.
We're looking at Exhibit 568-J which is part of it's labeled, press kit for the Michael Jackson the
w.

Immortal World Tour Cirque du Soleil. In the hypothetical that Mr. Voth was asking you on
certain things, he wanted you to assume away what was covered under ROP rights and what
wasn't, for the purposes of hypothetical, which was fine. But now I want to delve into that a little
more. You see this advertised, but let me ask you the first question, and I believe he ... I think it
ww
 om
was covered, it was covered on your ... the redirect. But I want to make sure I understand it. You
testified on cross-examination that Cirque would not need to license Mr. Jackson's ROP rights to
do the Cirque du Soleil show. Is that what you testified on cross-examination?

n.c
A. Yes, it was.

so
Q. Okay. And you even talked about that you might ... but leaving aside the indemnity, tell the
Court why they would be able to do that.

ck
A. Because this falls under 3344.1(a)(2) as a media exemption.

lJa
Q. Okay.

Mr. Voth: Respondent moves to strike that answer.

ae
Judge Holmes: Sustained.
ich

Mr. Toscher: Your Honor, he was cross-exam ...

mM

Judge Holmes: I understand. Did you include in your estimate of the right of publicity, value in
this case, any proceeds from the Immortal World Tour?

A. I anticipated that there might be merchandising associated from the various situations like
this, and merchandising would be covered.
a
Te

Judge Holmes: Did you include any proceeds from ticket sales?

A. I did not.
w.

Judge Holmes: Did you include any proceeds from ticket sales to any other stage productions or
musical productions like The Immortal World Tour?
ww
 om
A. No, I did not.

n.c
Judge Holmes: Why did you not?

so
A. Because I would consider them exempt under right of publicity statutes under California
3344.1.

ck
Judge Holmes: Go ahead, Mr. Toscher.

lJa
Mr. Toscher:

Q. Mr. Roesler, 568 press kit, it's an ... you understand this to be an advertisement for the Cirque
show?
ae
A. I do.
ich

Q. Okay. Is the fact that it's an advertisement for the Cirque show, does that change your opinion
as to whether somebody like Cirque would be able to that without a license for the ROP rights?
mM

A. The Statute specifically states that if the use is exempt so are the various advertising uses.

Mr. Voth: Respondent moves to strike that answer, Your Honor.

a

Judge Holmes: That's stricken as well. But, again, I want Mr. Toscher to be able to get his
Te

record. And it's your interpretation of the statute, that forms the basis of your opinion, that you
wouldn't count this in the income stream for Mr. Jackson's right of publicity posthumously,
correct?
w.

A. Yes, Your Honor.

ww
 om
Judge Holmes: Okay. I want ... in other words I want you to be able to say in your legal
analysis, rather than as a finding of fact that he got that wrong, thus I shouldn't trust his opinion.

n.c
A. I ...

Judge Holmes: Or that he got it right, and so his opinion is more trustworthy.

so
Mr. Toscher: Absolutely. So stipulated. Okay.

ck
Mr. Toscher: Yeah, go to 570.

lJa
Mr. Toscher:
Q. Okay. Exhibit 570-J just so we can move through this quickly, these are ... do you understand
these to be advertisements for the M ... Mike ... the MJ ONE show, where it says Michael
Jackson's One show?
ae
ich
A. I do.

Q. And is your opinion the same that for this show Cirque would not have to have obtained a
license for Michael Jackson's right of publicity rights, the ROP rights?
mM

Mr. Voth: Objection. Leading, Your Honor.

Judge Holmes: Sustained.

a
Te

Mr. Toscher: Well, Your ...

Judge Holmes: What's his opinion?

w.

Mr. Toscher: Well, I was trying to move it along because it's ...
ww
 om
Judge Holmes: I understand, but ...

n.c
Mr. Toscher: Okay. Okay.

Judge Holmes: But there objection ...

so
Mr. Toscher: But I will follow the Court's Order, of course.

ck
Mr. Toscher:
Q. Do you have an opinion as to whether Cirque would have to obtain a license from the owner

lJa
of the ROP rights for Michael Jackson to use these types of pictures in the Cirque type show?

A. I do. ae
Q. And what is your opinion?
ich

A. That they would be free to use those.

Q. And what about in ... do you have this ... what is ... what about using these pictures for
mM

advertising the Cirque show?

A. They would also be able to use them for advertising.

a

Mr. Toscher: Can we go to ... back to 567?

Te

Q. Mr. Roesler, have you seen Exhibit 567-J before?

w.

A. I have.

Q. And do you understand this to be an advertisement for Michael Jackson's This Is It, a movie?
ww
 om
A. I do.

n.c
Q. Okay. Now, all we're seeing is an advertisement here, but would the maker of a movie, the
producer of a movie, need to obtain permission or a license of Michael Jackson's ROP rights to
do a movie which contained the name or pictures of Michael Jackson?

so
Mr. Voth: Objection, calls for a legal conclusion, Your Honor.

ck
Judge Holmes: Sustained. I think I know what you're aiming at, Mr. Toscher. In your calculation
of the right of publicity value, did you take into account any revenue from posters like the one

lJa
we're seeing here?

A. No, I did not.

ae
Judge Holmes: Why did you not?
ich

A. Because it is a permitted use under the California 3344.1.

Judge Holmes: Well, I'll take that as his opinion testimony again, just so (inaudible) understand.
mM

Go ahead, Mr. Toscher.

Mr. Toscher: Okay.

a

Mr. Toscher:
Te

Q. Now, if either Cirque in a show, or This Is It, were utilizing another intellectual property, for
example, photos, would they have to obtain certain permissions from that from the owner of the
photos?
w.

Mr. Voth: Objection, Your Honor. Calls for a legal conclusion.

ww
 om
Judge Holmes: Sustained. Do it in the two- step, Mr. Toscher.

n.c
Mr. Toscher: Okay.

Mr. Toscher:

so
Q. The ... did you consider in purposes of your projection revenue from intellectual property
such as copyrights?

ck
A. In ...

lJa
Q. In your ... go ahead.

A. I'm sorry. I'm a little confused. In my - -

ae
Q. Revenue projection for ROP rights.
ich

A. Okay. Did I consider copyrights? No, I did not.

Q. Why didn't you consider copyrights?

mM

A. Because my valuation was for the right of publicity and associated trademarks.

Q. And why don't you include copyrights?

a
Te

A. Copyrights are not part of right of publicity or trademarks.

Q. Okay. And when we're talking about copyrights within your answer, do you mean copyrights
w.

relating to music?
ww
 om
A. Well, copyrights take a lot of different forms. It can be music, it can be photographs, it could
be videos, it could be original art, it could be, you know, stories, it can be poems, it can, you
know, copyrights are some original work that's fixed.

n.c
Q. And of those are ... and you didn't (inaudible) those are separate intellectual property rights?

so
A. The separate intellectual property rights that often most celebrities, whether you're a baseball
player or whatever, an artist, or an entertainer, there's various copyright issues that impact what
you do.

ck
Q. So let me, I'm not sure, it's been a long day, we covered it in the morning. Did we ... you
represented Ella Fitzgerald?

lJa
A. I do. ae
Q. And in what capacity, what rights of Ella Fitzgerald do you own? Not own, but represent her
with respect to ... or the Estate.
ich

A. We've represented the Ella Fitzgerald Estate for 20 or 25 years and we represent the right of
publicity with respect to Ella Fitzgerald. The copyrights to the musical assets are owned by a
record label.
mM

Q. Okay. Somebody independent of Ella Fitzgerald ...

A. The Estate.
a
Te

Q. ... or the Estate.

A. That's correct. That's correct.

w.
ww
 om
Q. So explain to the Court how you would go about representing her ROP rights if you don't own
... if the music rights are owned by some ... you said the record company. Can you tell us the
record company, or if you don't want to say it you don't have to.

n.c
A. Well, there are a couple of record companies that own her various rights.

so
Q. Okay. So ...

ck
A. But the ...

Q. ... her work (inaudible) just because I want to make sure. So her record company ... the rights

lJa
relating to her music are owned by more than one record company?

A. That's right. The master ...

ae
Mr. Voth: Objection. Leading.
ich

Judge Holmes: Sustained.

A. Okay. The masters and the musical compositions are owned by different entities. There's a
Ella Fitzgerald Charitable Foundation and they receive money from the musical assets and they
mM

have hired us to protect and monetize, and commercially exploit the right of publicity rights with
Ella Fitzgerald, so that's what we've done for the past 25 years.

Mr. Toscher:
Q. Now, in your report, initial report, in determining your projection of post-death income, did
a

you take into consideration that there would be the availability of Michael Jackson's music to
Te

help monetize the ROP rights?

A. I did.
w.

Q. Okay. And why did you do that?

ww
 om
A. Because that was what Michael Jackson was known for, so we needed to be able to have
cooperation when there were situations where both assets were exploited.

n.c
Q. And per your report you assumed the availability, is that correct?

A. That's correct.

so
Mr. Voth: Objection. Leading, Your Honor.

ck
Judge Holmes: Sustained.

lJa
Mr. Toscher: Let me rephrase.

Mr. Toscher:
ae
Q. Did you, in your report, did you assume ... well, here, let me turn to your report for a second,
Mr. Roesler, so we can just ... well, I'll just ask you. Did you assume the availability of the music
ich
for purposes of your projection?

A. I did.
mM

Q. Okay.

Mr. Toscher: Can we put up Page 36 Of his report Well, before let's put up Page 18. Let's start
there. Mr. Roesler we're looking at Page 18 of your report. A chart, historical ROP rights
a

revenues chart. Okay, that's fine. Thank you. The ... you were asked a number of questions on
cross examination and ... but before I get to some of the specific questions can you describe
Te

generally, the methodology you used for determining the value of the contracts? What was the
general procedure you used because you totaled ... I'm looking at total value ... well, total values
in the third column. But let's start there. How did you go about determining that number? You ...
I think you testified on cross there were some 40 programs you considered.
w.

A. I think there were 41 different programs and we undertook extensive research to try to
ww

recreate historically what happened during Michael Jackson's career when he became a solo
 om
recording artist, and that was in 1979 with the Off the Wall album, and through the time of his
death. So that period of time was just shy of 30 years. And so there were a number of books that
were ... that we ... that were very helpful to us, a lot of internet research, a lot of discussions with

n.c
the Estate and the different advisors there to try to recreate the different programs that he did
during that almost 30 year period. And my career started in 1981 so a lot of those companies I
also had done business with, with Elvis Presley and James Dean and Marilyn Monroe so I had a
knowledge of ... some of my personal knowledge with respect to those. So I ... we did our best to

so
try to recreate all of the information to determine what the total dollar value of the specific
contract was. Once we did that we then tried to strip out the various rights components of the
contracts.

ck
Q. Okay. Let's leaving aside the stripping out for a second. You said you got information from
the Estate. Did you have interviews with Karen Langford?

lJa
A. We did.
ae
Q. Did you look to not only Estate information but other third party information?
ich
A. We did.

Q. Okay. You were questioned on two or three or four of the programs. Mr. Voth asked you
whether you were able to obtain an actual contract and you said no. Explain to the Court how
mM

you were able to determine these numbers without the actual contracts.

A. Some of the contracts we had the specific financial information, the financial records from the
Estate, which corroborated the numbers. We, like I said, extensive independent research, you
know, asking questions to some of the different companies that were listed there. We ... those
a

were the main sources of our efforts.

Te

Q. Are you comfortable as an expert in your business to rely upon what this chart you prepared
here?
w.

A. Well, I did my best to try to have an accurate picture of what we thought the total numbers
were and our ... we ... and in some cases we weren't sure we increased the numbers to be overly
ww
 om
cautious. Could we have been high or low on some of those? I - - possible. We did what we
thought was the best job that we could and then allocated the respective amounts.

n.c
Q. Okay. Is it your opinion that this ... the chart is a fair representation of the programs engaged
in by ... ROP type programs engaged in by Mr. Jackson over the 30 year period?

so
Mr. Voth: Objection. Leading, Your Honor.

ck
Judge Holmes: Sustained.

Mr. Toscher:

lJa
Q. Do you believe that the chart accurately reflects the programs entered into Michael ... by
Michael Jackson on his ROP rights for the period contained?

A. I do.
ae
ich
Q. Now, I asked you before about Karen Langford. Based upon your discussions with her, do
you believe she had knowledge of these transactions over the period of time?

Mr. Voth: Objection. Leading, your Honor.

mM

Judge Holmes: Sustained.

Mr. Toscher:
a

Q. What was your understanding of Ms. Langford's personal knowledge of these ROP type
Te

historical contracts?

A. Karen Langford was very helpful. We found the information ... she had a lot of information. A
w.

lot of it was from notes that she appeared to have from these various contracts. Her information
sometimes was information that we used, other times it was the information that corroborated the
information that we had.
ww
 om
Q. So in order to determine the historical ROP rights chart, did you rely upon multiple sources of
information?

n.c
A. We did.

Q. Okay. Let's turn to the topic, once we determined the total value in Column 3, Column 1 is - -

so
it says year. If we have this ... Mr. Roesler, you can look at your report.

ck
A. I have it.

Q. Okay. So then what ... just explain very briefly what is the CEI adjusted 2009?

lJa
A. That's a figure that adjusts the number that ... the value of the contract in that specific year to
2009 values so we have a consistent number that we're utilizing. It's a 2009 value of a number.
ae
Q. Okay. So just give me the example on the first line we have Destiny tour merchandise, just
ich
explain the first four columns of that, so if the judge goes back and looks at this that he
understands what you're ... what you were trying to do here.

A. Okay. So that was a ... we ... we wee of the opinion that the tour merchandising value of that
mM

initial tour was $20,000 in 1979. So that number adjusted to 2009 value was $59,101 because it
adjusted 20 years forward. So the 2.96 if the CPI adjustment.

Q. CPI means?
a

A. It's just the ... it's just how it adjusted to the present value.
Te

Q. Okay. So let's go to the fourth column. What is the fourth column? It says ROP revenue
percentage.
w.

A. That's the percent that we allocated to right of publicity.

ww
 om
Q. Okay. Mr. Voth asked you a number of questions regarding some of these programs and I
want to ... let's zero in on first, entertainment properties and ... entertainment properties. Okay.
And you testified to an extent regarding that program and ... but I don't think it was all that

n.c
complete. What was your understanding of what that program was, who was it with? And then
I'm going to ask you a question on the allocation. Okay.

so
A. Okay. That was what we talked about earlier with Mr. Voth when he brought up Mr. Branca's
depositing where we talked about entertainment property. The gentleman was a gentleman by the
name of Chuck Sullivan who was a ... who at the time owned the New England Patriots. I believe
he owned the stadium too, so apparently he was wealthy at the time. And he both sponsored a

ck
tour from ... he sponsored an early tour of Michael Jackson and then apparently he lost money on
the tour. Then he came back and wanted to also do a very expansive line of Michael Jackson
branded products and there was a ... an agreement reached where he would pay $18 million and

lJa
we assumed that Michael received all $18 million of that money. And Michael was ... had to help
approve and help design a branded line that was ... that there were a number of major brands
associated with it and apparently this program never got off the ground. And it didn't get off the
ground and I guess Mr. Sullivan eventually went bankrupt and apparently lost the New England
ae
Patriot team and so ... but there was $18 million dollars that we allocated and we had to come up
with a division between the services that Michael would have performed and did perform under
this contract and the ROP value of that. And we came up with a 50/50 allocation.
ich

Q. And can you describe for us the basis for that 50/50 allocation, Mr. Roesler?
mM

A. Well, it was ... it ... as I said, the program wasn't successful. It never really got off the ground.
And it involved whatever efforts were made that we know there were at least some efforts of
Michael helping design programs. We thought it was only fair to allocate, you know, half of it to
the personal services and half of it to right of publicity even though there were not any royalties
really recouped.
a

Q. Okay. Now, this program was in 1984, correct?

Te

A. That's correct.
w.

Q. Okay. That was before the first abuse allegations. Is that correct?
ww
 om
A. That's correct.

n.c
Q. Okay. In your judgment do you think . Michael Jackson's ROP rights could ever
replicate a program like this following the first allegations?

Mr. Voth: Objection. Calls for speculation.

so
Mr. Toscher: What's ... what ...

ck
Judge Holmes: That's what experts are for. That one is overruled.

lJa
A. I don't ... I do not believe that Michael Jackson could do another program like Entertainment
Properties. ae
Mr. Toscher:
Q. Following the ...
ich

A. Following the 1993 Chandler ...

mM

Q. Allegations.

A. ... situation and the 2003 criminal trial.

a

Q. The ... Okay. Let's drop down to L A Gear which was covered on cross-examination. Right
there. L
Te

A. Gear. Tell us what you can recall about the LA Gear transaction and just ... this is 1990 when
that program started, Mr. Roesler? I'll wait for you to look.
w.

A. Okay. L A Gear. It ... yes, it says it started in 1990.

ww
 om
Q. And was that before or after the first abuse allegations?

n.c
A. That was before.

Q. Okay. So I don't think you need to explain the chart again going through the multiplication.
But on the ROP revenue percentage, you allocated 25 percent to ROP. And I think Mr. Voth was

so
getting at the point that was different than the 50 percent you allocated on Entertainment
Properties. Could you explain to the Court why you have a different allocation for those two?

ck
A. Well, we looked extensively into L A Gear. L A Gear was a program to design a line of shoes.
And Michael actually designed the line of shoes, and the shoes actually came out. And the
problem that happened with the shoes was he also agreed to shoot commercials and to wear ...

lJa
they were called Unstoppable. And he agreed to wear those in the promotional materials for his
upcoming album Dangerous. And the album Dangerous got delayed. So the shoes were released,
and they weren't very successful. And there became a dispute. He was actually supposed to get, I
believe, another $10 million on that contract, and it ended up in litigation. The shoes were
ae
ultimately, after very poor sales in a brief period of time ... I believe about a year ... the shoes
were ultimately pulled. And this resulted in litigation. There's some question exactly how much
he got. It was somewhere ... it may have only been $7.5 million of cash. There is a report that he
ich
also got $3 million in stock. So we placed a value of $10 million on this particular contract. And
we allocated a 25 percent ROP component because of the extensive personal services and the
design of the shoes that Michael did for this program.
mM

Q. So in your judgment on your study, you determined that there was more personal services
relating to that contract.

Mr. Voth: Objection. Leading.

a
Te

Judge Holmes: Sustained.

Mr. Toscher:
w.

Q. Did you determine that there was ...

ww
 om
Mr. Toscher: I'll get it right one of these days, Your Honor. But just for the record, Mr.
Weltzman's been a bad influence

n.c
**ESTATE LAWYERS LAUGHING IN COURT**

Mr. Toscher: I thought I was learning something.

so
Judge Holmes: Do you object, Mr. Weltzman?

ck
Mr. Toscher: I'm going to object for him.

lJa
Mr. Weitzman: He said it just like I wrote it.
**LAUGHS OUT** ae
Mr. Toscher: Okay. Now I lost my place. I did it to myself.
ich

Mr. Weitzman: I'll give you some notes.

Mr. Toscher: What was the question, the Court Reporter? Okay, no. Okay. Sorry, Your Honor.
mM

Mr. Toscher:
Q. Personal services. So your ... did your allocation of 25 percent to ROP rights take into account
the personal services that would have had to have been rendered by Michael Jackson in the L A
Gear transaction?
a
Te

A. Yes.

Q. Okay. Let's talk about personal services for a second because the government is quibbling
w.

with the allocations. Have you been called before to testify in cases, to testify between personal
services and other image rights and intellectual property?
ww
 om
A. I have.

n.c
Q. And you testified at a court case regarding that.

A. I have.

so
Q. And what court case is that?

ck
A. It was the IRS versus Sergio Garcia court case.

lJa
Q. Okay. And which side called you as a witness? Who are you the expert witness for in that
case?

A. The IRS.
ae
Q. Okay. And were you called upon in that case to allocate between ... tell us a little bit what
ich
your involvement in that case was. Do you remember who the judge was? You better get this
right.
mM

A. Yeah, I remember what he looked like. I don't remember ...

Q. No, don't go there.

**LAUGHING IN COURT**
a
Te

Mr. Toscher:
A. I don't remember his name.
w.

Q. Okay. Tell us a little bit about it just for ...

ww
 om
Mr. Weitzman: ... answer one. **LAUGHING IN COURT**

n.c
Mr. Toscher: He told me before it was Judge Goeke. For the record, he's not as good looking as
this Judge.

**LAUGHING IN COURT**

so
ck
Mr. Toscher: All right. Sorry. Enough of this. Overruled.

lJa
Mr. Toscher:
Q. Go ahead. Tell us what you were asked to do in that case for the IRS, Mr. Roesler.
ae
A. It was a fairly simple case in the sense of it involved one endorsement contract with a
company called Tailor Made. And Tailor Made is, perhaps, the leading golf accessory company,
and they had a ... they had an endorsement agreement with a famous golfer by the name of
ich
Sergio Garcia, which was at that time one of the top golfers on the PGA Tour. And the issue
centered around the one contract that paid them a large sum of money, and it centered around
what should the respective allocation be between his personal services and his intellectual
properties because the personal services would be taxed at a higher rate. The intellectual property
revenue was ... since it was a property right, Mr. Garcia transferred it to a Swiss company that
mM

enabled him to not pay taxes on any revenues that were allocated to the ... to those intellectual
property rights. So it was my job to work with the government to understand and analyze that
contract which had a lot of performance-related revenues, depending upon how many
tournaments he played in, depending on, you know, how he performed, and to determine the
allocation that should be assessed between the personal service component and the intellectual
property component.
a
Te

Q. And the government proffered your expert testimony on that allocation to the tax court?

A. They did.
w.

Q. You were questioned on cross-examination regarding Marilyn Monroe, and I want to get into
ww

that a little bit.

 om
Mr. Toscher: Can you go to Page 27 of Mr. Roesler's report?

n.c
Mr. Toscher:

so
Q. Mr. Roesler, tell us what your involvement was with representing the estate or the interests of
Marilyn Monroe's right of publicity. You ... let me just ask you this. Did you use Marilyn Monroe
as one of your comparables?

ck
A. I did.

lJa
Q. Okay. So tell us what your involvement with her estate was, CMG's. And then we'll ask some
specific questions. I want sort of the lay of the land before I get into it.
ae
A. We exclusively represented the intellectual property right interest of the Marilyn Monroe
estate from that ... the period of time in 1995 through 2010.
ich

Q. So tell me why you thought Marilyn would be a comparable that you should consider in
preparing your projection. Tell the Court.
mM

A. I thought Marilyn was a valid comparable because she was ... if Michael Jackson was the
greatest entertainer of all time, I thought that Marilyn Monroe was probably the most famous
female icon in the entertainment world, perhaps, of all time. And I thought it was comparable
because we only had, really, right of publicity and trademark rights to license with Marilyn. And
we ... well, Marilyn made a lot of films for various studios, and those were ... those copyrights
were owned by the various studios that did those movies. There were a lot of photographers out
a

there that took pictures. There were a lot of artists, like Andy Warhol, that did famous pieces of
Te

art of Marilyn Monroe. All those were copyrights that were outside the ownership of the Monroe
estate. They had value. They had value for ... they could generate revenue from those copyright
sources, and they did.
w.

Q. Okay. Let me stop you for one second. I think you ... I heard two sources. You talked about
Marilyn Monroe's films ...
ww
 om
A. Right.

n.c
Q. ... copyrights relating to those. And who would own those?

A. The studios.

so
Q. Okay. And you mentioned Andy Warhol. What did Warhol do? Who is Andy Warhol, just for
the record? I think most of us know.

ck
A. Well, one of the most famous artists of all time ...

lJa
Q. Okay.
ae
A. ... pop artists of all time. And so he's known for a series of Marilyn pieces of art that he did,
which were some of the highest-selling original works of art. You know, certainly in pop art, you
know, it sells for many millions of dollars for his original works of Marilyn that he did.
ich

Q. Okay.
mM

A. And the limited editions sell for hundreds of thousands of dollars.

Q. Okay. To your knowledge, did he ever ... did Andy Warhol ever come to you to get an ROP
license regarding Marilyn Monroe to make these works of art?
a

A. No, he did not.

Te

Q. And ...
w.

A. That ...
ww

Q. ... why not?

 om
A. The ... that's not necessary for original works of art.

n.c
Q. Okay.

so
Mr. Voth: Respondent moves to strike that last answer.

Judge Holmes: Overruled.

ck
Mr. Voth: Okay.

lJa
Mr. Toscher:
ae
Q. Let me turn to, I think, Appendix D again. We're not going to publish it because, again, it's the
... but the Court can look at it ... I think B ... I'm sorry ... E. It has the revenue stream. In your
accounting records here on Appendix E, you represented the Marilyn Monroe estate from 1995
ich
through 2010. Is that fair, based upon that chart there?

A. Yes.
mM

Q. Okay. Now, you talked before about some litigation concerning where Marilyn Monroe was
domicile. And I think you testified on cross that, ultimately, the courts determined that she wasn't
domicile in California. So can you tell us what that court determination did concerning your
ability to monetize Marilyn Monroe's ROP rights?
a

A. Well, that's a difficult question to answer because when the court decision came down, the
Te

prevailing party in a 3344.1 claim, which was a claim that we lost on domicile ... on Marilyn's
domicile that was really in New York instead of California ... we were ... there ... it ... there's
mandatory legal fees. So there were two cases, and there were multi- million dollars of legal fees
assessed in that particular situation against our side. So the estate was in disarray when that
w.

happened. And they ended up ... we parted company because we were concerned about a class
action lawsuit from people that had paid royalties. We ... so we parted ways. They sold the assets
to another company that bought up whatever assets were left. And they then partnered up with
ww
 om
some copyright holders, the same people that we were originally in litigation with that owned
large chunks of photographs, famous photographers who had taken pictures of Marilyn during
her lifetime. So they partnered up with them and regrouped, and they're making a go at it right

n.c
now.

Q. Okay. Going back to Appendix E ... and Mr. Voth talked to you about the average. And ... but

so
we have a ... after 2007, 2007 looked like a pretty high watermark. I'm not going to give you a
number because you want this confidential in terms of royalties. But then it drops off to about
just one quarter in 2010. Do you know what caused that?

ck
A. Well, that was the litigation because, with the litigation, people quit paying us.

lJa
Q. Was that after the litigation was decided or just during the litigation?

A. There were multiple pieces of litigation that ended up on the Second Circuit and the Ninth
ae
Circuit. There were multiple photographers. Some litigation ended up in the Second Circuit,
some in the Ninth Circuit. So they came down at different times.
ich

Q. Okay. And what do you attribute the drop in ROP revenue to?

A. The uncertainty of the rights and the litigation.

mM

Mr. Toscher: Your Honor, could we take 10?

Judge Holmes: The afternoon break.

a
Te

Mr. Toscher: Thank you.

RECESS...
w.

Mr. Toscher:
ww
 om
Q. Mr. Roesler, the ... you testified about the low level of marketability of Mr. Jackson at the
time of death of his ROP rights based upon the abuse allegations that have been made over the
years. Do you recall the years in which those allegations were made? I think the first one was in

n.c
what year?

A. 1993.

so
Q. And you refer to those as the ... who were the name of the plaintiff in that allegation?

ck
A. Chandler allegations.

lJa
Q. Okay. And were there subsequent allegations? And you know the year?

A. 2003.
ae
Q. Okay. And then was there a trial?
ich

A. There was.
mM

Q. And do you know what year that was?

A. I believe 2003 to 2005.

Q. And you ... do you understand ... do you know whether ... you understand that Mr. Jackson
a

was acquitted. Is that correct?

Te

A. That's correct.
w.

Q. Okay. Now, could you describe for the Court what you believe the impact of these allegations
were, even if they were all untrue?
ww
 om
A. The ... from a marketability standpoint, which is crucial to being able to commercially exploit
the ROP rights, the ... those allegations were very damaging. It's very difficult to overcome those
in the marketplace.

n.c
Q. Okay. If a hypothetical buyer came to you right around Michael Jackson's death, would you
advise him to be concerned regarding the history of those allegations?

so
A. I don't know if concerned is the right word. I would suggest that they look at all of the
circumstances, and that would be one of the circumstances that you would have to look at. And it

ck
would simply be reflected in the value, which you'd take into consideration.

Q. Would you advise him that he would ... should take into consideration the possibility of future

lJa
allegations ... post-death allegations?

A. Well, I think, certainly, if there were pre-death allegations, when someone does pass away,
ae
there is a particular ... particularly if there's a real media frenzy and particularly if it's high-
profile ... people come out of the woodwork, so to speak, to make claims and so forth. So you
have to address those. That kind of goes with the territory of a high-profile celebrity.
ich

Q. Okay. And were you aware in this case following Michael Jackson's death there was post-
death allegations relating to when he was still alive?
mM

Mr. Voth: Objection. Leading, Your Honor.

Judge Holmes: Overruled. Are you aware?

a

A. Yes, I ... I'm aware that there were allegations post-death.

Te

Mr. Toscher:
w.

Q. Abuse allegations.
ww
 om
A. Yes.

n.c
Q. So ... and would the possibility of post- death allegations impact your consideration of the
level of marketability of Mr. Jackson's ROP rights as of the date of death?

A. Well, it's part of the ... we ... as we move into ... as you move into post-death, there is a new

so
landscape that you have. And you're left with the ... you start off with the marketability that you
had pre-death. So taking that into consideration, you have to anticipate that you're going to have
with any celebrity a host of different ... possibly a host of different claims. And in this particular

ck
case, you're going to have to assume that there might be additional abuse allegations that come
about, and that's a factor that you're going to have to deal with on the rehabilitation.

lJa
Q. And that's even if the celebrity's already dead. Is that correct?

Mr. Voth: Correction. Leading, Your Honor.

ae
Judge Holmes: Sustained.
ich

Mr. Toscher: Okay. Withdrawn.

mM

Mr. Toscher:
Q. Now, Mr. Roesler, let me direct your attention to Part, I guess, 8 ... Page 53 of your report,
Identification of Necessary Actions and Estimated Expenses Needed to Generate Revenue. Could
you describe for the Court? In generating ROP revenue, what types of expenses would the owner
of those rights expect to incur in monetizing or exploiting those rights?
a
Te

A. I don't see many deceased celebrities that have ROP value representing themselves. They
typically need someone that understands how to monetize and protect those. With that in mind,
the fee structure is sometimes a bit surprising to people because it seems to be high. But the ...
our fee structure's anywhere from 35 to 50 percent, depending upon what we do. And that fee
w.

structure is based upon the level of expertise and services that are needed and the ... and balanced
against the potential return. And that's why we charge the fees that we charge.
ww
 om
Mr. Voth: If I may, Your Honor, this goes beyond the scopes of ... the scope of Respondent's
cross.

n.c
Judge Holmes: I think it does. We do have his direct report, though.

Mr. Toscher: Okay. Thank you. I think ... I'm not sure.

so
Judge Holmes: That's sustained.

ck
Mr. Voth: Respondent moves to strike.

lJa
Judge Holmes: Well, that's stricken.

Mr. Voth: Thank you.

ae
Mr. Toscher:
ich

Q. Now, going back a second, Mr. Roesler, I asked you whether you were aware of post-death
abuse allegations. Are you aware that three losses have been filed against the estate with respect
mM

to alleged allegations while Mr. Jackson was alive?

A. I am.

Q. Could we go to the chart on Page 36, please?

a
Te

Mr. Toscher: Can you blow up the center portion so we can see it a little better? Thank you.

Mr. Toscher:
w.
ww
 om
Q. Maybe just describe this for the Court. I think this is part we ... you know, we wanted to put
under seal. So I don't think anybody can see it from back there. Could you describe what ... let's
do it this way ... what this chart reflects so ... just so the Court understands it when he reviews it?

n.c
A. This chart is intended to ... in a visual manner to describe the annual ROP revenue for
different personalities that we addressed in our report. So the bottom is just a ... are just markers

so
from $750,000 a year to 1.5 million to 2.25 million to 3 million. And then along the top are the
different comparables that we use with respect to CMG clients. And then the red marks are the
different marks of Mr. Jackson. And the one right there is a weighted ... the weighted average.
And the one to the right of that is the $2.7 million, which was the ... just a straight average of ...

ck
we calculated that, in 2009 numbers, Mr. Jackson had $81 million ... roughly $81 million of ROP
revenues. And divided by 30, that came out to about $2.7 million. The high watermark was
Marilyn Monroe at 3.1. So that's just to kind of visually show what the different numbers were.

lJa
Q. Okay. Thank you, Mr. Roesler. We talked before concerning Nevada's right of publicity and
your consideration of all rights ... all state rights in terms of your projection. Are you familiar
ae
with the ... what's referred to as the MJ Live show in Nevada?

A. I am.
ich

Q. Okay.
mM

Mr. Toscher: Can we pass up the exhibits? And could I get set of exhibits?

Mr. Toscher: They're already done?

a

Mr. Toscher: Okay. Very good. Wow. We don't have a set ... We ... I don't have a set.
Te

Court Clerk: Exhibit 663-P is marked for identification. It is photos from MJ Live.
w.

Court Clerk: And Exhibit 664-P is marked for identification. It's a video promo from MJ Live.

Mr. Toscher: Okay. Can we publish Exhibit 663 marked for identification?
ww
 om
Judge Holmes: How long is it?

n.c
Mr. Toscher: Well, just first is the pictures. I think the video is only a minute, Your Honor.

so
Judge Holmes: Oh, okay.

Mr. Toscher: One minute.

ck
Mr. Toscher:

lJa
Q. Mr. Roesler, what has been published on the ... what's your understanding of what's been
published? I guess we have the first page of the MJ Live at the Stratosphere in Las Vegas.
ae
A. The Stratosphere is one of the major casino venues on the Strip in Las Vegas. So as a
consequence, most major casinos have shows, and this is the current show at the Stratosphere
casino right now.
ich

Q. Okay. Looking at that picture of the gentleman in the hat and that chin there and the hair, that,
to me, looks a little like ... supposed to look like Michael Jackson. Is that your understanding as
what ... who it's supposed to look like?
mM

A. I believe that's what we call in our business an impersonator.

Q. Okay. Now, do you know whether the producers of the MJ Live show have ever approached
the estate to try to get a license for ROP rights to produce the show?
a
Te

A. I am of the understanding from discussing this with the estate that this is ... the ... they have
no such ROP license from the estate.
w.

Q. And not having an ROP license, is that consistent with your understanding of California law
and Nevada law?
ww
 om
Mr. Voth: Objection. Leading, Your Honor.

n.c
Judge Holmes: Sustained.

Mr. Toscher:

so
Q. Is the fact they don't have a license ... how does ... okay. Let me try again. Can they produce
this show in Las Vegas without violating Nevada law?

ck
Mr. Voth: Objection. Calls for a legal ...

lJa
Judge Holmes: Sustained.

Mr. Voth: Thanks.

ae
Mr. Toscher: Okay. Your Honor, I would move into evidence Exhibit 663, the four pages.
ich

Mr. Voth: Respondent objects. This document was never timely exchanged in this matter. It was
just given to us today.
mM

Mr. Toscher: We just ... I mean, this is public knowledge, Your Honor.

Mr. Voth: During the break ... I believe it was the break.
a

Judge Holmes: Yeah. This one gets excluded. How about the video? Could we watch the video,
Te

Mr. Voth?

Mr. Toscher: Yes, Your Honor. We can watch it. Okay. Can you display 664?
w.

Judge Holmes: Wait, wait, wait.

ww
 om
Mr. Voth: That would be the same. Respondent would object to that. That would be the same.

n.c
Judge Holmes: I understand, actually. All right. This one's excluded as well for ...

so
Mr. Toscher: Can we show it for demonstrative purposes, Your Honor?

Judge Holmes: Demonstrative purposes? What do you purport that it demonstrates?

ck
Mr. Toscher: It demonstrates that pictures of Michael Jackson in the type of performance here is

lJa
something which does not have to be licensed under his ROP rights. It's absolutely critical. I can't
ask him about the ... but I think the Court should see it.

Judge Holmes: I'm kind of curious. We can ...

ae
Mr. Toscher: One minute, Your Honor.
ich

Judge Holmes: I'll see it and then rule on the motion.

mM

Judge Holmes: Can we play this? They're going to play it. So keep it in the envelope and keep it
marked as an exhibit. Identify it for the record at this point.

Mr. Toscher: Your Honor, just until she does, this is no different than us subpoenaing a third
party. These aren't our documents. These are third-party documents, and it's not as if ...
a
Te

Judge Holmes: You haven't told me where you got them from, though.

Mr. Toscher: Let me find out. From the internet, Your Honor. Let me ask ... The show's website.
w.

The show's website, Your Honor. This is ...

Judge Holmes: You might get your authentication. You might get the authentication. But ...
ww
 om
Mr. Toscher: Okay.

n.c
Judge Holmes: ... we'll see.

so
Mr. Toscher: Let's roll.

Ms Cohen. No sound?

ck
Mr. Weitzman: No sound?

lJa
Judge Holmes: He didn't get that licensed, I guess.
ae
Mr. Toscher: Okay. Can we turn the sound up and start over again?
ich
Mr. Toscher: I want my full minute. Playback of video begins

Mr. Toscher: Q. Mr. Roesler, now that you've seen the video and the pictures, would you
advise the producers of this that they would need to obtain a license from the owner of Michael
mM

Jackson's right of publicity to produce this?

Mr. Voth: Objection. Calls for a legal conclusion.

a

Judge Holmes: Sustained.

Te

Mr. Voth: And Respondent still continues - -

w.

Judge Holmes: Are tribute ... let me try. Are tribute ... feel free to object to my questions, too,
Mr. Voth.
ww
 om
CROSS-EXAMINATION

n.c
Judge Holmes:
Are tribute shows common in the entertainment field?

so
A. Yes, they're common.

Judge Holmes:

ck
In the course of your valuation of dead celebrities, rights of publicity and associated intellectual
property rights, do you take into account royalty streams or other payments from tribute shows?

lJa
A. I do not.

Judge Holmes:
ae
Why do you not?
ich

A. Because ...

Judge Holmes:
mM

The next word should be in my opinion.

Judge Holmes:
A. In my opinion ...
a
Te

Judge Holmes:
There we go.
w.

A. ... they do not infringe on the right of publicity of a celebrity. I wish they did.

Judge Holmes:
ww
 om
Are there rivals in your industry who also engage in the valuation of dead celebrities ... rights of
publicity and associated intellectual property rights?

n.c
A. I'm sorry, Your Honor ...

Judge Holmes:

so
Are there rivals in your business? Do you ... or do you have a monopoly on the valuation of dead
celebrities' rights of publicity and associated intellectual property rights?

ck
A. No, I'm sure there are other ...

lJa
Judge Holmes:
Are you familiar with their valuation practices?
ae
A. Yes, somewhat, Your Honor.
ich
Judge Holmes:
Do they take into account in their valuation of celebrities' rights of publicity and associated
intellectual property rights income streams from tribute shows?
mM

A. I do not believe they do.

Judge Holmes: Back to you, Mr. Toscher.

a

Mr. Toscher: Thank you, Your Honor. I would move in 663 and 664 into evidence. This is no
Te

different than us subpoenaing the documents from a third party at trial. And we just got them off
the internet. I guarantee you this was the first time I've seen these right now.
w.

Mr. Voth: Your Honor, Respondent has been working with Petitioner for quite some time, the
timely exchange of all the documents to ...
ww
 om
Judge Holmes: I agree with you, Mr. Voth. These two are excluded. But you made your record,
Mr. Toscher.

n.c
Mr. Toscher: One second, Your Honor.

Mr. Toscher: Your Honor, I don't want to slow things up, but ... ... I have a concern that there

so
was an incomplete ... what exhibit is the Page 53? It's Exhibit 662. And I just think it was ...

ck
Judge Holmes: That was the Branca deposition, I believe?

Mr. Toscher: Yes. And I think it was incomplete and out of context. And I want to be able to ...

lJa
Judge Holmes: You have the right to supplement it to make it complete ...
ae
Mr. Toscher: Yes. But I'd like to read it first unless somebody's going to tell me we want all
these four pages in because I don't want to take time away ...
ich

Judge Holmes: Read it silently. Don't read it into the record.

mM

Mr. Toscher: Pardon?

Judge Holmes: Please read it silently and not into the record.

Mr. Toscher: Your Honor, I ... for completeness sake, the background to the answer on 53 I
a

believe was taken out of context. And I would move into evidence Pages 49 through 53 of Mr.
Te

Branca's deposition under the rule of completeness.

Judge Holmes: It's ... you're entitled to that. Ms. Wood, if you could please mark that next in
w.

order.

Court Clerk: Exhibit 665-P is marked for identification.

ww
 om
Judge Holmes: Okay. And that will be admitted as well.

n.c
Judge Holmes: Anything else, Mr. Toscher?

so
Mr. Toscher: No, Your Honor.

Judge Holmes: There we go.

ck
Mr. Camp: Just for clarification, that was Pages 49 through 53 of the Branca depo?

lJa
Mr. Toscher: I'm sorry. Sorry. Too many people talking. Go ahead. What did you say? Sorry.
ae
Mr. Camp: I was ... just for clarification, 60 ... 665-P is Pages 49 through 53 of the Branca depo.
ich
Mr. Toscher: I think it's through 54. Did I give you through 54? Okay.

Mr. Camp: Sorry.

mM

Mr. Toscher: What does she want me to ... hold on, Your Honor.

Mr. Camp: So now it's 49 through 54.

a

Judge Holmes: Of the Branca deposition.

Te

Mr. Camp: Yes. Thank you.

w.

Judge Holmes: Through the rule of completeness, those are ... pages are admitted with their own
exhibit.
ww
 om
Mr. Camp: Thank you.

n.c
Judge Holmes:
Q. He has no further questions, but I have some questions for you, Mr. Roesler. Let's start with
your first report. This is 655-P.

so
A. Okay.

ck
Judge Holmes:
Page 38. This is more generally about the rehabilitation of a scandal-tainted celebrity. In your
experience, do you know of other tainted celebrities who were as tainted as Michael Jackson at

lJa
the time of their death?

A. Are you speaking about with respect to child issues or ...

ae
Judge Holmes:
ich
I'm thinking like O.J. Simpson. Are you familiar with ... does O.J. Simpson have any right of
publicity that's worth anything?

A. Sir, I would ... Your Honor, I was the expert witness in the civil case in my ...
mM

... in my younger days. That was 25 years ago.

Judge Holmes:
On whose side?
a
Te

A. I represented the Brown-Goldman family.

Judge Holmes:
w.

Okay.
ww
 om
A. So it was my testimony that his ... that he had a future value of $25 million. And that was
based on the revenues that he was able to generate after the murders but before the civil trial, and
he did generate, from my memory, if my memory serves me right, about $2 million after the

n.c
murders. And most of that ... a lot of that was personal services in terms of signing autographs as
autographs became very valuable. He posed for pictures, and he was still able to do card
programs. So that's how we based that opinion. So did ... could Mr. Simpson recover? It was
difficult, but we looked at his revenue for the rest of his life ...

so
Judge Holmes:

ck
And that was not just his right of publicity.

A. That's right. It was his ...

lJa
Judge Holmes:
That was ...
ae
A. ... personal service.
ich

Judge Holmes:
... included personal services.
mM

A. So ...

Judge Holmes:
Did you do a separate breakout of his right of publicity in that case?
a
Te

A. Your Honor, that was so long ago I'd have to ... you know, it was 25 years ago. I'd have to
look at that. But it was incorporated, I believe, within that. But yes, you can recover from
scandals. There are plenty of ... Kobe Bryant had a scandal, and he recovered, for the most part.
w.

But ...

Judge Holmes:
ww
 om
He's the basketball player?

n.c
A. I'm sorry?

Judge Holmes:

so
Basketball player?

A. Yes. So there are ...

ck
Judge Holmes:

lJa
Mike Tyson. Mike Tyson. Does Mike Tyson have a right of publicity, to your knowledge, that is
exploitable?
ae
A. Well, we all have a right of publicity. It is ... that's a value. Mike Tyson, yes, I would say he
has a right of publicity that has some value. The last I heard, he was doing various standup
routines. And I'm sure there are opportunities where people want to talk about the history of
ich
boxing and trading cards and things of that nature. And so I guess that ... to answer your
question, the ... there are degrees of bad conduct and how you recover from that bad conduct.

Judge Holmes:
mM

Signing autographs is personal services, in your view?

A. Yes, Your Honor.

a

Judge Holmes:
Te

Okay. Page 66 of your report, tell me when you're there. This, again, is about the Pepsi contract.

A. Okay.
w.

Judge Holmes:
The Entertainment Properties contract ... I'm sorry.
ww
 om
A. I'm sorry. The Entertainment Properties?

n.c
Judge Holmes:
Yeah.

so
A. Okay.

ck
Judge Holmes:
It was ... that was from one of his early tours ...

lJa
A. Right.

Judge Holmes:
ae
... pre-problems.
ich

A. That was Chuck Sullivan.

Judge Holmes:
mM

That's back in '84, height of Thriller. At the top of the page, you say, "Extensive research
confirms that a deal of this magnitude appropriately required Jackson rendering of additional
personal services." What is that extensive research?
a

A. Well, this was back in 1984. We tried to talk to as many people as we could and researched
both what we found in books and our internet research. And Karen Langford was the most
Te

knowledgeable about that. And the ... it was fairly widely reported what happened. And that was
the research that we did.
w.

Judge Holmes:
What additional personal services did Mr. Jackson render in connection with that $18 million
contract?
ww
 om
A. Well, we knew that ... first off, it was to coincide with the release of the Bad album. So we
knew that his appearance out in the public was important, and we also knew that, because

n.c
Michael was a perfectionist, that he was very acutely involved with all the programs that utilized
his name and likeness. So he would have been involved in the design and the approval of all of
these different programs that were to come out on that whole master license with Entertainment
Properties.

so
Judge Holmes:

ck
Okay. Did that master license cover just tour merchandise? Or did it cover retail merchandise?

A. It covered the retail merchandise. It was ... there were a number of companies that were

lJa
identified that he was to release these at retail.

Judge Holmes:
ae
Okay.
ich
Judge Holmes: Are you bringing him back, by the way, as part of your rebuttal case?

Mr. Toscher: It sort of depends on what the ...

mM

Judge Holmes: On how Mr. Anson goes?

Mr. Toscher: ... yes, Respondent puts on.

a

Judge Holmes: Some of these are actually more appropriate for Mr. Anson
Te

Judge Holmes:
w.

Judge Holmes:
On Page 17 of your rebuttal report, 656-P - - tell me when you're there.
ww
 om
A. I'm there, Your Honor.

n.c
Judge Holmes:
First of all, paragraph ... part of the middle there, it talks about the recoupable advance that AEG
had made to Mr. Jackson in anticipation of the 02 concert series. And you state, "The $32.5

so
million recoupable amount essentially was an encumbrance on Jackson's ROP rights." Why do
you say that?

ck
A. Because of the debt that Mr. Jackson had with AEG, Bravado was ... AEG ended up initially
signing a license directly with Bravado. And the first $5 million payment went from Bravado to
AEG because they were the ones that were going to do the tour merchandise. So there became a

lJa
dispute because AEG took the position that they were owed ... I believe it was $37 million. It was
later reduced to $32 million after an audit. And because of that dispute, the parties came together
to work together. And part of the resolution was the Bravado master license that they entered
into, which ultimately netted the estate $10 million and AEG 5 million. And that $10 million
ae
five-year license resulted in an encumbrance to the estate in that they were tied into Bravado for
the merchandise.
ich

Judge Holmes:
Okay. Was it equally ... was the recoupable amount equally an encumbrance on Mr. Jackson's
royalties from master recordings and mechanical publishing right recordings?
mM

A. Your Honor, I don't know that I can answer that question because I didn't ... I was not
involved in that aspect of it.
a

Judge Holmes:
In calculating your anticipated income stream from the right of publicity that Mr. Jackson's estate
Te

had, did you make an adjustment based on the $32.5 million recoupable amount?

A. I don't believe I made an adjustment. I ... no, I don't think I did, Your Honor.
w.

Judge Holmes:
ww
 om
Did you consider the positive benefits to the estate of combining the right of publicity with other
rights that Mr. Jackson left to his parents ... synergistic effects?

n.c
A. Well, we thought of that. And in some cases, those various intellectual property rights are
combined. But in most cases, they're not necessarily combined because various intellectual
property right holders own various pieces with respect to celebrity IP rights. So I don't believe

so
that the valuation would differ. All of these are separate intellectual property assets that have
historically been valued independently for many other celebrities and musical assets.

ck
Judge Holmes:
Have you valued any of these other intellectual property rights in other cases, by which I mean
the royalties that would be due as a performer in various copyrightable assets or as a musical ...

lJa
or as a composer?

A. I'm sorry, Your Honor. I didn't understand ...

ae
Judge Holmes:
ich
Have you valued ...

A. ... the last ...

mM

Judge Holmes:
... for other estates the value of assets that consist of master recordings, composition royalties,
and the other assets that Mr. Jackson left behind?
a

A. No, Your Honor, I haven't. I ... we ... our company is involved in musical asset intellectual
Te

property matters. But typically, I don't personally do that, so I don't necessarily consider myself
someone that would do something like that.

Judge Holmes:
w.

Were you retained only to value the right of publicity that Mr. Jackson left behind?
ww
 om
A. Yes, Your Honor. The right of publicity and any associated trademarks that related to that right
of publicity.

n.c
Judge Holmes:
I understand that. With that caveat, I understand.

so
Judge Holmes: Any follow-up questions, Mr. Toscher?

ck
Mr. Toscher: One second, Your Honor

lJa
REDIRECT EXAMINATION

Mr. Toscher: ae
Q. I think Mr. Voth asked you some questions regarding the Elvis estate and James Dean that
there were certain challenges to the rights ... ROP rights in those particular comparables you
used. Do you recall that, sir?
ich

A. I do.
mM

Q. Okay. And are you aware that there were challenges to the ownership of Michael Jackson's
ROP rights in this case in the estate? Are you familiar with those?

A. I am.
a

Q. Okay. And do you believe all the comparables you relied upon in terms of your analysis were
Te

comparable for purposes ...

A. I do.
w.

Mr. Voth: Objection. Leading.

ww
 om
Judge Holmes: Overruled.

n.c
Mr. Voth: All right.

Mr. Toscher: On that, Your Honor, no further questions.

so
Judge Holmes: Okay. Any questions following up on mine, Mr. Voth?

ck
Mr. Voth: No, Your Honor.

lJa
Judge Holmes: Okay. Thank you very much. You're not released yet, apparently, but you can
step down for the day.

A. Thank you.
ae
Judge Holmes: Who's next?
ich

Mr. Toscher: Your Honor, our next witness would be Jay Fishman ... and I would request ... it's
5:20 ... we put him on first thing in the morning. And it's been a long day for me, and we'll be
mM

quick in the morning. And I think that's going to be our last witness.

Judge Holmes: Mr. Ruffalo or Ms. Ruffalo?

Mr. Toscher: No, we resolved that issue ...

a
Te

Judge Holmes: Oh, good.

Mr. Toscher: ... with the cooperation of the government.

w.

Judge Holmes: Done. All right. We'll start with Mr. Fishman then first thing tomorrow. Do you
ww

have ... oh.

 om
Ms Herbert: Your Honor, I have one housekeeping matter ...

n.c
Judge Holmes: Yes.

so
Ms Herbert: ... to address.

Judge Holmes: Yes.

ck
Ms Herbert: The parties have agreed to call John Branca on Friday during Respondent's case-

lJa
in-chief.

Judge Holmes: That's great. Does he know that?

ae
Mr. Toscher: He does.
ich

Judge Holmes: Okay. Very ... he's been very patient sitting out there all this time. So that will be
fine. Are you planning to start your case-in- chief tomorrow then as well?
mM

Ms Herbert: No, Your Honor, because the - - we had originally planned to call certain
witnesses. And as a courtesy to Petitioner, we called them for the convenience of the witnesses at
that time. And those are the ones that we would have called tomorrow afternoon.

Judge Holmes: Okay. So we may have a shorter day tomorrow afternoon. That's fine.
a
Te

Mr. Toscher: Your Honor?

Judge Holmes: Yes.

w.

Mr. Toscher: Could you inquire to the government as to what the schedule will be ... we'll be
done with Mr. Fishman ... for the rest of Wednesday, Thursday, and Friday?
ww
 om
Judge Holmes: How about Thursday? Who's going to start your case on Thursday?

n.c
Ms Herbert: We plan to start our case-inchief on Thursday morning.

so
Judge Holmes: With whom?

Ms Herbert: With Tohme Tohme.

ck
Judge Holmes: Oh.

lJa
Ms Herbert: Followed by James Nederlander in the afternoon.

Judge Holmes: Oh, oh.

ae
ich
Mr. Toscher: And that's Thursday?

Ms Herbert: Yes.
mM

Judge Holmes: Then we'll have Branca on Friday and move on. Mr. Anson, I take it, will be
days if he can stand up to it. Is that right?

Ms Herbert: We plan to call him on Friday.

a
Te

Judge Holmes: Friday and start him and keep going with him for quite a while, I imagine.

Mr. Toscher: Your Honor, might I inquire because ...

w.

Judge Holmes: Mm-hmm.

ww
 om
Mr. Toscher: ... we're splitting up the examination of Mr. Anson among us?

n.c
Judge Holmes: By subject matter.

Mr. Toscher: Yes, yes.

so
Judge Holmes: Okay.

ck
Mr. Toscher: Do we know what we're going to start with, Mr. Voth?

lJa
Ms Herbert: Your Honor, could we let them know tomorrow because they only gave us one
day's notice?
ae
Judge Holmes: Fair enough. You'll find out tomorrow.

Mr. Toscher: Absolutely.

ich

Judge Holmes: Until tomorrow then, we are adjourned.

a mM
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w.
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