Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page1 of 51
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`ROLAND E. GARCIA,
`Plaintiff,
`
`v.
`DAVID COLEMAN, et al.,
`Defendants.
`___________________________________/
`
`No. C-07-2279 EMC
`
`FINAL JURY INSTRUCTIONS
`All Jury Instructions, Nos. 1 - 49
`
`NINTH CIRCUIT MODEL CIVIL JURY INSTRUCTIONS
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page2 of 51
`
`I. PRELIMINARY INSTRUCTIONS (READ AT OUTSET OF TRIAL)
`
`JURY INSTRUCTION NO. 1 -- DUTY OF JURY
`Ladies and gentlemen: You are now the jury in this case. It is my duty to instruct you on the
`
`law.
`
`You must not infer from these instructions or from anything I may say or do as indicating
`that I have an opinion regarding the evidence or what your verdict should be.
`It is your duty to find the facts from all the evidence in the case. To those facts you will
`apply the law as I give it to you. You must follow the law as I give it to you whether you agree with
`it or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices, or
`sympathy. That means that you must decide the case solely on the evidence before you. You will
`recall that you took an oath to do so.
`In following my instructions, you must follow all of them and not single out some and ignore
`others; they are all important.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`2
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page3 of 51
`
`JURY INSTRUCTION NO. 2 -- CLAIMS AND DEFENSES
`To help you follow the evidence, I will give you a brief summary of the positions of the
`
`parties:
`
`The plaintiff, Roland E. Garcia (doing business as Garcia International Trading), claims
`ownership of a copyright in a photograph and seeks damages against the defendants, David Coleman
`and Amerivine, Inc., for copyright infringement. The defendants deny that the plaintiff is the owner
`of the photograph at issue and further deny infringing the copyright. The defendants also assert
`affirmative defenses, e.g., the plaintiff granted them a nonexclusive license to use the photograph,
`the plaintiff’s lawsuit is barred by the statute of limitations or the doctrine of laches, and the plaintiff
`abandoned any rights to the photograph. Although the photograph in question was used on a wine
`label, this case does not involve a dispute over the ownership of the wine label, the label design, or
`the brand name. Only the photograph is at issue in this case.
`To help you understand the evidence in this case, I will explain some of the legal terms you
`will hear during this trial.
`
`DEFINITION OF COPYRIGHT
`The owner of a copyright has the right to exclude any other person from reproducing,
`preparing derivative works, distributing, performing, displaying, or using the work covered by
`copyright for a specific period of time.
`Copyrighted work can be a pictorial work such as a photograph.
`Facts, ideas, procedures, processes, systems, methods of operation, concepts, principles or
`discoveries cannot themselves be copyrighted.
`COPYRIGHT INTERESTS
`The copyright owner may transfer, sell, or convey to another person all or part of the owner’s
`property interest in the copyright, that is, the right to exclude others from reproducing, preparing a
`derivative work from, distributing, or displaying, the copyrighted work. To be valid, the transfer,
`sale, or conveyance must be in writing. The person to whom a right is transferred is called an
`assignee.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`3
`
`For the Northern District of California
`
`United States District Court
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page4 of 51
`
`One who owns a copyright, whether as an original owner or an assignee, may agree to let
`another person reproduce, prepare a derivative work of, distribute, or display the copyrighted work.
`The person to whom this right is transferred is called a licensee.
`HOW COPYRIGHT IS OBTAINED
`Copyright automatically exists in a work the moment it is fixed in any tangible medium of
`expression. The owner of the copyright may register the copyright by delivering to the Copyright
`Office of the Library of Congress a copy of the copyrighted work. After examination and a
`determination that the material deposited constitutes copyrightable subject matter and that legal and
`formal requirements are satisfied, the Register of Copyrights registers the work and issues a
`certificate of registration to the copyright owner.
`LIABILITY FOR INFRINGEMENT
`One who reproduces, prepares derivative works from, distributes, or displays a copyrighted
`work without authority from the copyright owner during the term of the copyright, infringes the
`copyright.
`Copyright may also be infringed by vicariously infringing.
`VICARIOUS INFRINGEMENT
`An employer is liable for copyright infringement by its employee or agent if the employee’s
`infringing acts were committed within the scope of the employment or agency.
`DEFENSES TO INFRINGEMENT
`The defendants contend that there is no copyright infringement. There is no copyright
`infringement where a plaintiff does not own the copyright, a plaintiff has granted a defendant a
`nonexclusive license, a plaintiff’s lawsuit is barred by the statute of limitations or the doctrine of
`laches, or a plaintiff has abandoned the copyright.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`4
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page5 of 51
`
`JURY INSTRUCTION NO. 3 -- BURDEN OF PROOF -- PREPONDERANCE
`OF THE EVIDENCE
`When a party has the burden of proof on any claim, or affirmative defense, by a
`preponderance of the evidence, it means you must be persuaded by the evidence that the claim, or
`affirmative defense, is more probably true than not true.
`You should base your decision on all of the evidence, regardless of which party presented it.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`5
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page6 of 51
`
`JURY INSTRUCTION NO. 4 -- WHAT IS EVIDENCE
`The evidence you are to consider in deciding what the facts are consists of:
`1.
`the sworn testimony of any witness;
`2.
`the exhibits which are received into evidence; and
`3.
`any facts to which the lawyers have agreed.
`
`6
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page7 of 51
`
`JURY INSTRUCTION NO. 5 -- WHAT IS NOT EVIDENCE
`In reaching your verdict, you may consider only the testimony and exhibits received into
`evidence. Certain things are not evidence, and you may not consider them in deciding what the facts
`are. I will list them for you:
`(1)
`Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What
`they have said in their opening statements, will say in their closing arguments, and at other
`times is intended to help you interpret the evidence, but it is not evidence. If the facts as you
`remember them differ from the way the lawyers have stated them, your memory of them
`controls.
`Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients
`to object when they believe a question is improper under the rules of evidence. You should
`not be influenced by the objection or by the court’s ruling on it.
`Testimony that has been excluded or stricken, or that you have been instructed to disregard,
`is not evidence and must not be considered. In addition sometimes testimony and exhibits
`are received only for a limited purpose; when I give a limiting instruction, you must follow
`it.
`Anything you may have seen or heard when the court was not in session is not evidence.
`You are to decide the case solely on the evidence received at the trial.
`
`(2)
`
`(3)
`
`(4)
`
`7
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page8 of 51
`
`JURY INSTRUCTION NO. 6 -- EVIDENCE FOR LIMITED PURPOSE
`Some evidence may be admitted for a limited purpose only.
`When I instruct you that an item of evidence has been admitted for a limited purpose, you
`must consider it only for that limited purpose and for no other.
`For example: Although the photograph in question was used on a wine label, this case does
`not involve a dispute over the ownership of the wine label, the label design, or the brand name.
`Only the photograph is at issue in this case. Any testimony or evidence relating to the Sonoma
`Ridge wine label, label design, or brand name will be presented for the limited purpose of explaining
`the context of the transaction in which the photograph was used. Any testimony or evidence relating
`to the Sonoma Ridge wine label, label design, or brand name may be considered only for this limited
`purpose and for no other reason.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`8
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page9 of 51
`
`JURY INSTRUCTION NO. 7 -- DIRECT AND CIRCUMSTANTIAL EVIDENCE
`Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as
`testimony by a witness about what that witness personally saw or heard or did. Circumstantial
`evidence is proof of one or more facts from which you could find another fact. You should consider
`both kinds of evidence. The law makes no distinction between the weight to be given to either direct
`or circumstantial evidence. It is for you to decide how much weight to give to any evidence.
`By way of example, if you wake up in the morning and see that the sidewalk is wet, you may
`find from that fact that it rained during the night. However, other evidence, such as a turned on
`garden hose, may provide a different explanation for the presence of water on the sidewalk.
`Therefore, before you decide that a fact has been proved by circumstantial evidence, you must
`consider all the evidence in the light of reason, experience, and common sense.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`9
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page10 of 51
`
`JURY INSTRUCTION NO. 8 -- RULING ON OBJECTIONS
`There are rules of evidence that control what can be received into evidence. When a lawyer
`asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not
`permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question
`may be answered or the exhibit received. If I sustain the objection, the question cannot be answered,
`and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore
`the question and must not guess what the answer might have been.
`Sometimes I may order that evidence be stricken from the record and that you disregard or
`ignore the evidence. That means that when you are deciding the case, you must not consider the
`evidence that I told you to disregard.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`10
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page11 of 51
`
`JURY INSTRUCTION NO. 9 -- CREDIBILITY OF WITNESSES
`In deciding the facts in this case, you may have to decide which testimony to believe and
`which testimony not to believe. You may believe everything a witness says, or part of it, or none of
`it. Proof of a fact does not necessarily depend on the number of witnesses who testify about it.
`In considering the testimony of any witness, you may take into account:
`the opportunity and ability of the witness to see or hear or know the things testified to;
`the witness’s memory;
`the witness’s manner while testifying;
`the witness’s interest in the outcome of the case and any bias or prejudice;
`whether other evidence contradicted the witness’s testimony;
`the reasonableness of the witness’s testimony in light of all the evidence; and
`any other factors that bear on believability.
`The weight of the evidence as to a fact does not necessarily depend on the number of
`witnesses who testify about it.
`
`(1)
`(2)
`(3)
`(4)
`(5)
`(6)
`(7)
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`11
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page12 of 51
`
`JURY INSTRUCTION NO. 10 -- CONDUCT OF THE JURY
`I will now say a few words about your conduct as jurors.
`First, you are not to discuss this case with anyone, including members of your family, people
`involved in the trial, or anyone else; this includes discussing the case in internet chat rooms or
`through internet “blogs,” internet bulletin boards or e-mails. Nor are you allowed to permit others to
`discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let
`me know about it immediately;
`Second, do not read or listen to any news stories, articles, radio, television, or online reports
`about the case or about anyone who has anything to do with it;
`Third, do not do any research, such as consulting dictionaries, searching the Internet or using
`other reference materials, and do not make any investigation about the case on your own;
`Fourth, if you need to communicate with me simply give a signed note to the clerk to give to
`me; and
`Fifth, do not make up your mind about what the verdict should be until after you have gone
`to the jury room to decide the case and you and your fellow jurors have discussed the evidence.
`Keep an open mind until then.
`Finally, until this case is given to you for your deliberation and verdict, you are not to
`discuss the case with your fellow jurors.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`12
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page13 of 51
`
`JURY INSTRUCTION NO. 11 -- NO TRANSCRIPT AVAILABLE TO JURY
`During deliberations, you will have to make your decision based on what you recall of the
`evidence. You will not have a transcript of the trial. I urge you to pay close attention to the
`testimony as it is given.
`If at any time you cannot hear or see the testimony, evidence, questions or arguments, let me
`know so that I can correct the problem.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`13
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page14 of 51
`
`JURY INSTRUCTION NO. 12 -- TAKING NOTES
`If you wish, you may take notes to help you remember the evidence. If you do take notes,
`please keep them to yourself until you and your fellow jurors go to the jury room to decide the case.
`Do not let note-taking distract you. When you leave, your notes should be left in the jury room. No
`one will read your notes. They will be destroyed at the conclusion of the case.
`Whether or not you take notes, you should rely on your own memory of the evidence. Notes
`are only to assist your memory. You should not be overly influenced by your notes or those of your
`fellow jurors.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`14
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page15 of 51
`
`JURY INSTRUCTION NO. 13 -- BENCH CONFERENCES AND RECESSES
`From time to time during the trial, it may become necessary for me to talk with the attorneys
`out of the hearing of the jury, either by having a conference at the bench when the jury is present in
`the courtroom, or by calling a recess. Please understand that while you are waiting, we are working.
`The purpose of these conferences is not to keep relevant information from you, but to decide how
`certain evidence is to be treated under the rules of evidence and to avoid confusion and error.
`Of course, we will do what we can to keep the number and length of these conferences to a
`minimum. I may not always grant an attorney’s request for a conference. Do not consider my
`granting or denying a request for a conference as any indication of my opinion of the case or of what
`your verdict should be.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`15
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page16 of 51
`
`JURY INSTRUCTION NO. 14 -- OUTLINE OF TRIAL
`Trials proceed in the following way: First, each side may make an opening statement. An
`opening statement is not evidence. It is simply an outline to help you understand what that party
`expects the evidence will show. A party is not required to make an opening statement.
`The plaintiff will then present evidence, and counsel for the defendant may cross-examine.
`Then the defendants may present evidence, and counsel for the plaintiff may cross-examine.
`After the evidence has been presented, I will instruct you on the law that applies to the case
`and the attorneys will make closing arguments.
`After that, you will go to the jury room to deliberate on your verdict.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`16
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page17 of 51
`
`JURY INSTRUCTION NO. 15 -- STIPULATIONS OF FACT
`The parties have agreed to certain facts that will be read to you. You should therefore treat
`these facts as having been proved.
`In the instant case, the parties agree that the defendants used, and therefore, copied, the
`photograph at issue. The defendants, however, deny that the plaintiff is the owner of the photograph
`at issue.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`17
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page18 of 51
`
`JURY INSTRUCTION NO. 16 -- DEPOSITION IN LIEU OF LIVE TESTIMONY
`A deposition is the sworn testimony of a witness taken before trial. The witness is placed
`under oath to tell the truth and lawyers for each party may ask questions. The questions and answers
`are recorded.
`The defendant David Coleman will be testifying live in this trial. However, the plaintiff also
`intends to submit testimony that he gave in a deposition in a different case. You should consider
`that deposition testimony, insofar as possible, in the same way as if the witness had been present to
`testify.
`
`Do not place any significance on the behavior or tone of voice of any person reading the
`questions or answers.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`18
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page19 of 51
`
`JURY INSTRUCTION NO. 17 -- USE OF INTERROGATORIES OF A PARTY
`Some evidence will be presented to you in the form of answers of one of the parties to
`written interrogatories submitted by the other side. These answers were given in writing and under
`oath, before the actual trial, in response to questions that were submitted in writing under established
`court procedures. You should consider the answers, insofar as possible, in the same way as if they
`were made from the witness stand.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`19
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page20 of 51
`
`JURY INSTRUCTION NO. 18 -- EXPERT OPINION
`Some witnesses, because of education or experience, are permitted to state opinions and the
`reasons for those opinions.
`Opinion testimony should be judged just like any other testimony. You may accept it or
`reject it, and give it as much weight as you think it deserves, considering the witness’s education and
`experience, the reasons given for the opinion, and all the other evidence in the case.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`20
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page21 of 51
`
`JURY INSTRUCTION NO. 19 -- CHARTS AND SUMMARIES NOT
`RECEIVED IN EVIDENCE
`Certain charts and summaries not received in evidence may be shown to you in order to help
`explain the contents of books, records, documents, or other evidence in the case. They are not
`themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures shown
`by the evidence in the case, you should disregard these charts and summaries and determine the facts
`from the underlying evidence.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`21
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page22 of 51
`
`JURY INSTRUCTION NO. 20 -- CHARTS AND SUMMARIES IN EVIDENCE
`Certain charts and summaries may be received into evidence to illustrate information brought
`out in the trial. Charts and summaries are only as good as the underlying evidence that supports
`them. You should, therefore, give them only such weight as you think the underlying evidence
`deserves.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`22
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page23 of 51
`
`II. FINAL JURY INSTRUCTIONS (READ IMMEDIATELY
`PRIOR TO DELIBERATIONS)
`
`JURY INSTRUCTION NO. 21 -- BURDEN OF PROOF -- PREPONDERANCE
`OF THE EVIDENCE
`When a party has the burden of proof on any claim, or affirmative defense, by a
`preponderance of the evidence, it means you must be persuaded by the evidence that the claim, or
`affirmative defense, is more probably true than not true.
`You should base your decision on all of the evidence, regardless of which party presented it.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`23
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page24 of 51
`
`JURY INSTRUCTION NO. 22 -- WHAT IS EVIDENCE
`The evidence you are to consider in deciding what the facts are consists of:
`1.
`the sworn testimony of any witness;
`2.
`the exhibits which are received into evidence; and
`3.
`any facts to which the lawyers have agreed.
`
`24
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page25 of 51
`
`JURY INSTRUCTION NO. 23 -- WHAT IS NOT EVIDENCE
`In reaching your verdict, you may consider only the testimony and exhibits received into
`evidence. Certain things are not evidence, and you may not consider them in deciding what the facts
`are. I will list them for you:
`(1)
`Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What
`they have said in their opening statements, will say in their closing arguments, and at other
`times is intended to help you interpret the evidence, but it is not evidence. If the facts as you
`remember them differ from the way the lawyers have stated them, your memory of them
`controls.
`Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients
`to object when they believe a question is improper under the rules of evidence. You should
`not be influenced by the objection or by the court’s ruling on it.
`Testimony that has been excluded or stricken, or that you have been instructed to disregard,
`is not evidence and must not be considered. In addition sometimes testimony and exhibits
`are received only for a limited purpose; when I give a limiting instruction, you must follow
`it.
`Anything you may have seen or heard when the court was not in session is not evidence.
`You are to decide the case solely on the evidence received at the trial.
`
`(2)
`
`(3)
`
`(4)
`
`25
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page26 of 51
`
`JURY INSTRUCTION NO. 24 -- CREDIBILITY OF WITNESSES
`In deciding the facts in this case, you may have to decide which testimony to believe and
`which testimony not to believe. You may believe everything a witness says, or part of it, or none of
`it. Proof of a fact does not necessarily depend on the number of witnesses who testify about it.
`In considering the testimony of any witness, you may take into account:
`the opportunity and ability of the witness to see or hear or know the things testified to;
`the witness’s memory;
`the witness’s manner while testifying;
`the witness’s interest in the outcome of the case and any bias or prejudice;
`whether other evidence contradicted the witness’s testimony;
`the reasonableness of the witness’s testimony in light of all the evidence; and
`any other factors that bear on believability.
`The weight of the evidence as to a fact does not necessarily depend on the number of
`witnesses who testify about it.
`
`(1)
`(2)
`(3)
`(4)
`(5)
`(6)
`(7)
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`26
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page27 of 51
`
`JURY INSTRUCTION NO. 25 -- STIPULATIONS OF FACT
`The parties have agreed to certain facts that will be read to you. You should therefore treat
`these facts as having been proved.
`In the instant case, the parties agree that the defendants used, and therefore, copied, the
`photograph at issue. The defendants, however, deny that the plaintiff is the owner of the photograph
`at issue.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`27
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page28 of 51
`
`JURY INSTRUCTION NO. 26 -- DEPOSITION IN LIEU OF LIVE TESTIMONY
`A deposition is the sworn testimony of a witness taken before trial. The witness is placed
`under oath to tell the truth and lawyers for each party may ask questions. The questions and answers
`are recorded.
`The defendant David Coleman will be testifying live in this trial. However, the plaintiff also
`intends to submit testimony that he gave in a deposition in a different case. You should consider
`that deposition testimony, insofar as possible, in the same way as if the witness had been present to
`testify.
`
`Do not place any significance on the behavior or tone of voice of any person reading the
`questions or answers.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`28
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page29 of 51
`
`JURY INSTRUCTION NO. 27 -- USE OF INTERROGATORIES OF A PARTY
`Some evidence will be presented to you in the form of answers of one of the parties to
`written interrogatories submitted by the other side. These answers were given in writing and under
`oath, before the actual trial, in response to questions that were submitted in writing under established
`court procedures. You should consider the answers, insofar as possible, in the same way as if they
`were made from the witness stand.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`29
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page30 of 51
`
`JURY INSTRUCTION NO. 28 -- EXPERT OPINION
`Some witnesses, because of education or experience, are permitted to state opinions and the
`reasons for those opinions.
`Opinion testimony should be judged just like any other testimony. You may accept it or
`reject it, and give it as much weight as you think it deserves, considering the witness’s education and
`experience, the reasons given for the opinion, and all the other evidence in the case.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`30
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page31 of 51
`
`JURY INSTRUCTION NO. 29 -- CHARTS AND SUMMARIES NOT
`RECEIVED IN EVIDENCE
`Certain charts and summaries not received in evidence may be shown to you in order to help
`explain the contents of books, records, documents, or other evidence in the case. They are not
`themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures shown
`by the evidence in the case, you should disregard these charts and summaries and determine the facts
`from the underlying evidence.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`31
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page32 of 51
`
`JURY INSTRUCTION NO. 30 -- CHARTS AND SUMMARIES IN EVIDENCE
`Certain charts and summaries may be received into evidence to illustrate information brought
`out in the trial. Charts and summaries are only as good as the underlying evidence that supports
`them. You should, therefore, give them only such weight as you think the underlying evidence
`deserves.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`32
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page33 of 51
`
`JURY INSTRUCTION NO. 31 -- COPYRIGHT
`The plaintiff, Roland E. Garcia (doing business as Garcia International Trading), claims
`ownership of a copyright in a photograph and seeks damages against the defendants, David Coleman
`and Amerivine, Inc., for copyright infringement. The defendants deny that the plaintiff is the owner
`of the photograph at issue and further deny infringing the copyright. The defendants also assert
`affirmative defenses, e.g., the plaintiff granted them a nonexclusive license to use the photograph,
`the plaintiff’s lawsuit is barred by the statute of limitations or the doctrine of laches, and the plaintiff
`abandoned any rights to the photograph.
`Although the photograph in question was used on a wine label, this case does not involve a
`dispute over the ownership of the wine label, the label design, or the brand name. Only the
`photograph is at issue in this case. Any testimony or evidence relating to the Sonoma Ridge wine
`label, label design, or brand name was presented for the limited purpose of explaining the context of
`the transaction in which the photograph was used. Any testimony or evidence relating to the
`Sonoma Ridge wine label, label design, or brand name may be considered only for this limited
`purpose and for no other reason.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`33
`
`

`
`Case3:07-cv-02279-EMC Document103 Filed01/22/09 Page34 of 51
`
`(1)
`(2)
`
`(3)
`
`JURY INSTRUCTION NO. 32 -- COPYRIGHT -- DEFINED
`Copyright is the exclusive right to copy. This right to copy includes the exclusive rights to:
`authorize, or make additional copies, or otherwise reproduce the copyrighted work in copies;
`recast, transform, or adapt the work, that is, prepare derivative works based upon the
`copyrighted work;
`distribute copies of the copyrighted work to the public by sale or other transfer of
`ownership]; and
`display publicly a copyrighted pictorial work such as a photograph.
`It is the owner of a copyright who may exercise these exclusive rights to copy. The term
`“owner” includes the author of the work or an assignee. In general, copyright law protects against
`production,