I will post updates to the bottom. Last update was at 4:58 p.m.
The seventh day of the Calvin Ellis hearing is about to begin. They will be in closed session because testimony inovlves another individual’s character and reputation.
Hearing is back in open session.
Keith is asking Ellis about when he selected music for his show. Ellis said the process starts in March and continues until July. He said choreographers come into town in July. Ellis said at that point he hadn’t selected all of the songs. The choreographers are from the competition songs, but there are additional songs that would be performed during October.
Keith asked whether any of the songs would need to be arranged. Ellis said all of the songs that were going to be in the competition show would be arranged. He said Steve Anderson and Jeremy Alferra (spelling?) would do the arrangement. He spoke with them at the end of April or beginning of May. He told them which songs he wanted arranged for the competition show and that he sent them the exact songs. For Steve Anderson it was “Cold as Ice,” “Fire and Ice,” “Fire,” and “We didn’t start the Fire.” For Mr. Alferra, it was “Freeze” “More,” and “Set Fire to the Rain.”
Keith asks Ellis when he got permission to have those songs arranged. Ellis said he received a contract from Steve Anderson for the four songs he would arrange. On the contract it said it was the school’s responsibility to get permission for the arranging. He said Anderson said to please make sure to get the permission because they are really cracking down on this copyright business. “So I did it, just for his.”
Ellis: I also need to state, for years since I have been doing this job, every arranger I have spoken with does not do this particular thing. They don’t ask you to sign a contract. You send them what you want arranged and they arrange it. When he was harping on going to Hal Leonard, I did what he asked me to do.
Ellis said he didn’t think about that for the other arrangers because he had never been asked to do that before. “That was the common practice for all arrangers.”
Keith directs him to exhibit 24.
Keith asks if that is the contract from Steve Anderson.
Ellis said it is not. He said he didn’t receive that until August. He said that document is a contract provided by Hal Leonard after he submitted those songs to Hal Leonard in April.
Keith asks Ellis about his contact with Hal Leonard. Ellis said it did it through the website, which was the way Anderson told him to do it. He contacted them in late April or May, toward the end of the past school year. He said he didn’t hear anything from them until he received that document, exhibit 24, in August.
Ellis said that when he received it, he forwarded it to Terri Stewart. It is a contract that says licensor, Tupelo High School, agrees to pay licensee, Steve Anderson, $200, etc. It also says that after arrangement Tupelo High School would send a copy of the work to the copyright office.
Ellis said that he did not read the contract, he forwarded it to Terri Stewart because he knew there was a copyright fee that would need to be paid.
Keith asked if he sought legal advice from the school district to make sure he wasn’t in violation of copyright law. Ellis said he did not.
Ellis signed the document on Sept. 6. It was then sent to Cherry Lane Music. Ellis said he didn’t know at the time it was sent to Cherry Lane. He said he entrusted Terri Stewart to take care of it. He was deep in the show choir season and he didn’t read the fine print and left Terri Stewart to take care of it.
At the bottom of the letter it says the deal will be voided if they don’t get the payment within 60 days.
On the next page is the same form of a contract for “We didn’t start the fire.”
Butts said the last line of questioning is unfair because on the front of the contract it says payment was sent within two days of the signature.
Also attached is a contract for a third song.
Keith said it could not have left the district before Sept. 6 because Ellis had not signed it. Ellis agreed.
Also attached are mailed checks. I think Keith said that one of the days listed was for Sept. 4
Ellis said the fourth song was “Fire” but there was something with the Hendrix estate that prevented them from getting permissions.
Keith asked if Ellis was concerned at that time that he would not get permissions in time for this show in October.
Ellis said he began at that time in August to become concern because he had a better understanding of the process. He said he had done the job for years and the massive scope of copyright law blew his mind. He said he did not have a complete understanding of the details needed for copyright law. That was something he hadn’t considered before.
Keith asked if the students had already begun practicing and whether copies of music had already been placed in student folders. Ellis said yes.
Keith: Had you gotten copyright permission at that time?
Ellis said no.
Keith moves to exhibit 8. An email exchange with Stewart. Stewart asked for any updates on copyright stuff. The last paragraph said she also needed to get copies of the music Ellis wrote.
Keith: She is not depending on herself to do this, she is asking you for the update?
Ellis: She was asking me for an update on the status. At that time, I was also unclear on the full process on how all of this worked. I had submitted the majority of the songs for my show at the end of August when I got all the information I needed to understand that every arranger and every piece of music needed to be submitted and approved. I finally understood that. I submitted all of my songs at the end of August. I had been speaking with Mark Greenburg….I was thinking that when Mark Greenburg would send me an email that said cleared, I thought we were good to go on copyright. I didn’t know the full process was sending back two copies of the music. When I got information from these people that the songs were cleared and you were good to go, I thought that mean we had approval.
Keith asks what Ellis meant when he said he submitted all of his songs by the end of August.
Ellis said he had been working with arrangers before and had never been told he had to get copyrights….Every arranger I had ever worked with never asked me to do this. At this point, I am coming to the summer and I was like I did this for him (Steve Anderson) and then I get this crazy email from Hal Leonard. I am asking can you explain the process to me. I have never had to do this before. One arranger is asking for this and every (other) arranger I have ever worked with never asked me for this. It took me a while to understand that it doesn’t matter what the arranger asked me, I had to get permission for copyright..
Ellis said he finally understood at the end of August, through his conversations with Greenburg. On Aug. 29, he thought he still had two months and all of his songs would be cleared. He submitted all of his songs at the end of August through Tresona.
Keith asks how he found Tresona.
Ellis said Suzy Williams was the first person to tell him about that company. She had found it as she was trying to get copyrights for her songs. It was in the beginning of August and she told him about this company she found that could help get the process going.
Ellis said he has been working with other arrangers and all of a sudden there is emphasis on this. Arrangers are all uncomfortable that there is this legal mess going on with the show choir profession.
He said emailed Jeremy Alferra what was going on and why he had never asked for this before. Ellis was told this was new, I am trying to do a service, that this was new.
Ellis: Here are these colleagues I have been working with for years and years that were uncomfortable with the situation and I am stuck in the middle trying to figure out how do I deal with this. I was trying to get the full scope of this and then I finally understood that I needed to do this no matter what.
Ellis said he didn’t get a straight forward answer from Anderson. He had to ask other people. He had to ask David Alderman and other arrangers to see what the truth was.
Keith asks if Ellis stayed with Mr. Alferra for those songs.
Ellis said he did submit those songs to Hal Leonard. He didn’t think anything of it. What triggered him to think more about the process was the letter he received regarding the Ask the Lonely and Drive all night arrangements that were already done.
Keith asks if Ellis stayed with Mr. Alferra for those songs.
Elllis said he did.
Keith asks why he didn’t go
Ellis as I have stated five times already. I have done this job for five years. Never have I had to do this process. It did not occur to me at that time that I had to go an do this for every single song. It didn’t register with me. I thought this was something he was asking me to do for him.
Keith: You didn’t understand you had to do this for every arranger?
Ellis said it was informal. It wasn’t a full explanation of why. He just did what he asked him to do in the middle of his crazy, insane schedule.
Keith refers to email on Sept. 14 to Terri Stewart at 12:01 a.m. It says that he thinks they are in the clear and that no news means good news in this arena. Ellis said that (no news is good news) was Greenburg’s statement.
Ellis said the email says I think we are in the clear, not that he knows they were in the clear. He said Greenburg told him that if you aren’t able to get copyright you usually hear something immediately.
Keith: In fact, you had no confirmation at that point.
Ellis: I had no confirmation, yes.
Keith asks about board meeting that night. He said Ellis told the board they had permissions on five songs.
Ellis said he can’t remember. He thinks had permission from Mark Greenburg about one or two songs being pre-cleared or on the cleared list. He took that to mean he was approved for it. The language of copyright was not something he was well versed in so he thought cleared meant he could perform those songs.
Ellis said when he met with the booster club, he had the three songs he had signed to contract on (mentioned above) and the two songs on the pre-cleared list.
I understand now that was a misrepresentation because I did not have the copies of music attached but at the time I thought the singing of these contracts and the mailing of the checks meant we were good to go with those songs.
Keith asks what documentation Ellis had from Greenburg.
Ellis said he did not have documentation but that he didn’t understand what he needed.
Hearing takes a break at 10:20 a.m.
Hearing resumes at 10:37 a.m.
Keith refers to the meeting with the board where Ellis discussed copyright. Keith asks about discussion where Ellis said he would go forward and ask for forgiveness later.
Ellis said that is not how the discussion went. He said he talked to several other directors who were working through this and moving forward. Ellis said that he doesn’t recall saying he was going to do it anyway and ask for forgiveness. It was a discussion on how they would make it happen.
Keith: As of that date, you had not sought assistance from the administration or the district’s legal counsel had you?
Ellis said no.
Keith refers to an email that Ellis sent to Greenburg after that meeting. Ellis said in the email that he learned about copyright permissions at the end of the last school year and that he didn’t realize that this was something that every arranger must get. Ellis said he had arrangements that didn’t have copyrights.
Ellis said at this point he knows that wasn’t proper.
Ellis said in the email he was getting worried and he asked what the fine was for performing songs without permission. He said he would never purposefully do that but that he is worried about not getting permission for the songs.
Ellis: Like I stated at the meeting, where there was discussion about going ahead and doing the show as was the example set by other directors, he wasn’t comfortable with doing that, he wanted to get more information. “I wasn’t saying to him that I was going to do it, but I think it is important to know what the full scope of doing something is.”
Ellis said asking him what was the fee doesn’t mean he was going to do it, it was just a question.
Keith: You realize that performing songs without permission, you and the school would be in a lot of trouble.
Ellis: I was beginning to realize that. That is why I decided to postpone the show.
Keith refers to an email from Greenburg, says the fine is the last thing to worry about and it is $150,000. Says that is the last thing to worry about, it is a felony.
Keith asks if that outlined the seriousness of what they were dealing with
Ellis said he began to understand it was not in the best interest to go forward. He began to think they may need to postpone the show after that email.
Keith asked if Ellis shared that with anyone and Ellis said he did not.
The email noted a pre-approved list. Keith said you could not use that list because you had already been practicing songs and it was too late to do that?
Ellis said that is correct.
Keith asks about Stewart and Whitwell agreeing to help Ellis. Ellis said he gave them everything he had in his files.
Keith said they realized that no songs had been approved as of that date.
Ellis: They never communicated with me that no songs had been approved. They never communicated with me that I misrepresented the status. When I said I had four or five songs approved, they never said but Calvin we don’t have any. I feel like if there was disagreement they should have mentioned it to me so that I could understand where the miscommunication was.
Keith: Is it
Ellis: I didn’t say it was the parent’s responsibility. I gave the responsibility to Terri Stewart because she wanted to help. I don’t want to make excuses. My day…you can see all of these emails happened at midnight at 1 a.m. I spend all my day working with kids and there is no way I could do my job and do all that she did. I am not saying it is her responsibility but she offered to help me. Ultimately it is my responsibility because I am the director, but she was helping me. Yes it is my responsibility but I do rely heavily on parents for help.
The other teacher getting these copyright approvals had six periods during the day where she had time to get those approvals. I did not and that is why I asked for help.
Keith said that Ellis chooses his schedule and that his teaching lessons after school and his enrollment in a college course is his choice. Are you now saying your schedule was so bad you didn’t have time to do what may be the most important thing you had to do and that was to make sure this district was not in violation of copyright law.
Ellis: I am not trying to withdraw my education. I realize that this is an issue but before I realized this was an issue I had commitments for voice lessons. Said he thinks it is important to further his education because that helps students. “When this issue came to me, I already had other obligations….I needed help and if I had a fellow colleague who was willing to help and wanted to help, this burden would have been easier.
I am not taking the responsibility away from me to make sure this district is not liability. I am not saying that is not important. But in the scheduling, it is a lot to drop every detail. I did everything I could.
Keith refers to April email from Ellis to Stewart saying that he may need to put the copyright fee on the credit card. Ellis said that was just for Hal Leonard. He didn’t know then that he needed to submit by check and he was trying to think about possible expenses.
Keith refers to email from Daniel Peters about arrangement of “Ask the Lonely” and “I Drove all Night.” The email is to Peters and Atkinson saying copyright agreement had not been obtained. Keith you knew at that time that there is copyright issue in regard to arrangers I need to be aware of. This is July 13.
Ellis said yes.
Keith: After your meeting with the executive board on the 14 th , you were aware that the executive board met with Mr. Harris.
Ellis said he never knew they met with Mr. Harris. He knew Mr. Harris knew about copyright because Valerie Whitwell said she had been approached by Mr. Harris at a laptop distribution and asked her what was going on with the copyright issue. He said he had no idea the board had approached him about the copyright.
Ellis said that was Sept. 18.
Keith: Prior to Sept. 18, you had never gone to Mr. Harris about a possible copyright issue.
Ellis said he did go to Mr. Harris on Sept. 21 when he had a conference. At that point, Whitwell had told Ellis about her conversation with Harris and that she told Ellis she did not know how Harris knew about it.
Ellis said at the end of the conference, he told Harris about the problem he was having. He said that Harris acted like that was the first time he had heard about anything regarding copyright.
Keith: Are you disputing what Mr. Harris testified.
Ellis I just know there is something fishy about that story because he acted like my conference with him was the first time he knew anything about copyright. He testified the other day that the booster club came to and told him about a copyright issue and I never knew that.
Keith refers to an email from Ellis to Greenburg. Said he wanted to apologize for his second email and that he didn’t realize that Greenburg had sent cleared list. It said there was only one song on that list in his show. It said he doesn’t know what to do or how to replace the seven songs he had already practiced. Said he is about to lose his mind over this and he was truly in a mess..”
Keith: You sent that because you realized you were in a lot of trouble at that point.
Ellis I knew our show was about a month away and I didn’t know how I was going to do that.
Keith refers to an email to parents, on Sept. 29. It said they were still waiting for copyright permissions on a few songs. Keith asks how many songs Ellis had permission on at that point
Ellis: According to real meaning of approval that I didn’t find out until after I was terminated. I thought more was approved.
Keith: I am asking you as of this date, how many did you actually have.
Ellis: I understand now…I don’t know. I don’t know when they received the music with the copyright. I may not have had any but what I am trying to explain to you in my mind, I thought we had those cleared…..After I was terminated and I understood the difference between cleared and approved I understood that I didn’t have any.
Keith asks who the district looks to to make sure all songs are cleared and approved. Ellis said “me.”
Ellis said it was his idea to postpone the show, not Mr. Harris’ idea. He said he wanted the parents to know it was important to him that the principal (thought they should postpone the show. Said he thought it was important for the parents to know that the principal thought the same thing).
The email talked about the need for a meeting. Keith asked if the board decided a meeting wasn’t needed to postpone the show. Ellis said that was correct.
Ellis is referred to a letter he sent to parents. Email said they had permission on a few songs.
Keith: At that point, what evidence did you have that songs were cleared.
Ellis: Based on the fact that I had signed three contracts and I had heard at that point on two songs that we had cleared. It was a general representation of what I thought was approved.
Keith: You had told Mark Greenburg the day before there was only one song on the cleared list.
Ellis: There was also another song. I believe it was “Written in the Stars” that he told me was cleared.
Referred to email from Steve Anderson to Ellis saying that he doesn’t have permission on fire and warns that it is highly illegal and he could get in a lot of trouble.
Keith asks if Ellis ever sought advice from administration or district lawyers.
Ellis said he didn’t do that. He said he tried to work with the issue as best as he could given that he had planned his show, hired choreographers and done everything as he had in the past. The process is so extensive that it took him a lot to understand himself. True he could have gone to the administration, but that is something he did not do and he is not perfect.
Keith refers Ellis to booster club bylaws and asks if Ellis had ever read it. Ellis said, to be honest no. Said he skimmed over it.
Keith said Ellis did not read this, contract with Hal Leonard, his employment contract. Do you not read documents (related to your job?)
Ellis: Choral program is a lot from tradition. I learn from my arriving here, under my supervision. Not one revisits these. They are not brought up. I was never even given one of these by the booster club. You learn your job day to day. You assume the people in the booster club are following these and you work. I read things I need to read. I just skimmed over these, but that is the nature of what the beast is.
Keith asks if Ellis is a member of the booster club. Ellis said he understands that now in reading this, but he thought the teachers were just there to oversee it, he didn’t know he was a member.
Keith refers to constitution. It says that all officers and members shall serve the club without compensation. On the next page, at the bottom, the treasurer shall make no expenditures without a receipt.
Keith said that members come and go with their children and that Ellis is the consistency from year to year. He asked if Ellis goes to all of the meetings.
Ellis said he goes to all of the general meetings but not the board meetings.
Keith: You know now that you did not follow the procedures in regard to you being compensated by the booster club.
Ellis: I now know that but I never saw a copy of the booster bylaws (until he was fired?).
Keith: You now know expenditures required a receipt. Ellis said his weakness is keeping up with receipts.
Keith: You now know that major purchases required a majority vote.
Ellis: I now know that.
Keith: Do you believe you have a duty to follow the terms of this constitution and bylaws of the Tupelo High School choral booster club.
Ellis: I believe that.
He said the officers also have a responsibility to inform him of the booster bylaws and that had not been happening.
Keith: You don’t have a duty on your own to determine what your responsibilities are to spend booser club money?
Ellis: I have a duty, but I thought the way the booster club was operated was how I observed it. (Before 2010, he observed how it was run under Vicky Wilson). His work with the booster club was steered by his example.
Keith: In spending booster club money, it was important that you let the booster club know what you were spending, is that correct?
Ellis: AS this process is happening, I see now what that was important. (Said he wished he could go back and change that but he was operating on examples.)
Keith is referring to a February email exchange between Ellis and Stewart. Ellis refers Stewart to a bill from Anderson that he just received. Said he told Anderson that the booster books were closed but that they could pay it after July 1. Then there is an email from Stewart to Anderson the next day paying the invoice. A reply from Anderson said he was surprised to hear that she was just receiving the email because Ellis had had it for a long time. He said that whenever he spoke with Ellis about it, Ellis told him the booster books were closed.
Keith: Does that mean your email to Stewart was not accurate?
Ellis It could be looked at as not accurate. I remember not receiving or not opening that email. I can’t remember exactly. I remember in looking at it, it was not open. I must have missed it in the 60 or 70 emails I get each day.
Keith: He said he talked to you about it.
Ellis: Yes. I don’t remember that.
Ellis said that invoice put the Sound Wave group over budget.
The district presents Ellis with a new email, exhibit 79. It was written by Ellis about the need to pay an arranger, take money from another fund to do it.
Stewart sent it to other boosters.
Response from Mary Thomas, who was the secretary at the time, said they could not keep altering (the budget)
Then Ellis sent out a letter to the booster board. Keith asks Ellis is he was upset at the time.
Ellis said he was very upset.
“Mr. Keith, the difficulty in working with parent groups is that they don’t fully understand, and I think you can tell from the testimony before us they don’t fully understand the scope of the expenses and the need to change things in show choir. We are dealing with a competitive group. Sometimes songs don’t work out and some times choreography doesn’t work out…It is frustrating that I need to do what is best for the group when you have parents who don’t understand what needs to be done. All they are talking about is the dollar, the dollar, the dollar. I am not saying that isn’t important. It is. But I need some free reign to do what is important for my group….I was upset because they try to micromanage, there is no way for them to micromanage every decision I need to make for the betterment of Wave Connection or Sound Wave….I heard through the grapevine Mary Thomas was upset at the way the New York trip money was spent. I had to spend it for those kids….The micromanage everything I do that I know is best for the group. They are not the music director They are not the artistic director.
Keith: Mr. Ellis, you are spending booster club money, and don’t they have a right to question your expenditures.
Ellis: They have a right to question and they have a right to know. I’ve told them on chorography sometimes when you have 26 boys who can’t dance, sometimes it doesn’t work out. …I know they have a responsibility and an obligation, but they have to understand that their questions need to be geared in a way that still allows me to run my program and they are trying to hinder that.
Keith: You got mad because they challenged you?
Ellis: Yes I got upset they challenged the fact I needed to move the money around. I would take away from sets, I would take away from everything else, the two most important things they are judged on, music and visual….Mary Thomas said no altering, but that is what we’ve always done in show choir. She didn’t understand the necessity to alter. I was trying to inform her of that.
Ellis said that every year he has been here there have been budgetary issues in show choir because they are trying to compete against groups with there times the budget…I think we do a pretty good job given the money we spend….This is a problem that existed before I got to Tupelo. I came in here with Sound Wave and Wave Connection not having any money.
Ellis said he talked to parents about having bigger fundraisers.
Keith said you knew board didn’t reissue credit card
Ellis said that is true but they never told him why.
Keith asks Ellis about several large expenditures. $1,000 for NY trip to register, $850 for charter bus to Oxford, $2,500 for a party at Birmingham competition at Auburn high school when you told everyone you were invited to Auburn party, $10,000 plus for lighting without board
Keith: Which of those did you have board approval for?
Ellis: None, can I explain. WE do not operate like that. If we operated like that, why did the treasurer of the booster club not decide not to pay the expenditure. That is not how our booster club has run ever since I have known it. I could explain each of those expenditures and the process behind it if you like me to, but we didn’t operate like that. The booster club could have asked me to reimburse them or could have not paid it. There was not conversation with me that they disagreed.
Keith: Mr. Ellis, when they challenged you, you sent them a hot response about what is going on.
Ellis: It was, but they didn’t understand the scope of the (process?)
Keith about board approval for arranging a song
Ellis said the show choir met and they knew what (he was going to do….the arranging project).
Keith: You didn’t inform them how much you were going to charge until you submitted the bill
Ellis No. Neither did I inform the board of any arranger’s fees before I submitted a bill, ever.
Keith asks about sending students outside the PAC for punishment. When you sent them out, they ran laps around the building. Was there any adult supervision?
Ellis there was supervision at night when the ran. Sometimes I had them run at the beginning of practice and I would not go out when they did that because it was still daylight. AT night, on numerous occasions, I would stand out and count how many laps they had run.
Keith: you did allow students to wrestle on the mats without your supervision?
Ellis: Yes. Let me explain that situation. AS one of your witnesses stated before. You have all kinds of guys in this group, many of whom are athletes. I am trying to teach these guys to sing and dance, many of which have never done that before. I strongly believe you have to let these guys be who they are to get what you can get form them. These guys don’t care about show choir. They don’t care about singing and dancing. They care about having a good time. They use this tradition of wave connection fight club. They are not punching each other in the face. They are just having a good time in their breaks for the long hours that they are rehearsing. Sometimes I would be in there. Despite the testimony of the student yesterday I did not wrestle with them. Sometimes they would try to wrestle with me, but I didn’t stet out to wrestle with any student.
Keith: But you did wrestle with them
Ellis; They jumped on me but I didn’t body slam them or anything. I want you to understand this was just a tradition I wanted them to be proud of. No one got hurt. I wanted them to have fun as part of the group.
Keith asks about supervision.
Ellis said sometimes he would give them a 10 minute break while he worked with choreographer. The guys would sometimes sneak off and decide to have WCFC….I am sorry I couldn’t be in every single place at every single time .Every time they decided to have this, I wasn’t there. It wasn’t like I was letting them run wild and do whatever they want to do. They snuck away and have fun.
Keith asks about board policy not allowing teachers to tutor their students but that Ellis was given an exception tot that policy.
Ellis said yes.
Keith asked about Ellis also violating a policy that prohibited teachers from tutoring during the school day. Ellis said that he did so because the student asked him if he could begin her lessons earlier in the day because she had another school activity at 3:30. Because he was available during eight period, he agreed to do that.
Keith asked Ellis if he had any authority to alter a board policy. Ellis said he did not.
Keith: Did Mary Thomas resign her position after receiving that email from you?
Ellis said yes.
The district said that it is done with Ellis. Butts will not cross examine him because he will call him as a witness.
The district rests, subject to rebuttal witnesses. The district called 13 witnesses over 6.5 days of the hearing.
Hearing is in recess until 1:10 p.m.
David Butts will begin the defense’s case at that time.
The hearing resumed at around 1:10 p.m. David Butts is beginning his defense. The hearing opens in closed session because a student is testifying.
The hearing is now back in open session. Ramona DeSalvo is now testifying.
(NOTE, DeSalvo says later that she may have confused Alderman and Anderson at some points in her testimony. It says that later, but I wanted to be sure to also note that here, in case there are incorrect references to one or the other).
She is a copyright lawyer from Nashville. She is testifying via online video. She has been practicing for 32 years. She holds a degree in political science from Cal Berkley and attended law school at University of San Francisco before transferring to the University of Cincinnati and receiving her degree there in 1980.
She has been a trial attorney her entire career. In 1991, she decided to focus on the music industry….Is a music publisher….Since 1991, she has been focused on copyright and entertainment and she has also worked on trademark.
Butts: Have you had frequent opportunity to work with copyright?
DeSalvo: Absolutely, on a significant number of cases….She said she was involved on the single largest copyright infringement case in United States history.
She was also involved in Napster litigation…..several other high-profile cases….
She teaches intellectual property law and entertainment law at the Nashville School of Law. …
She also speaks to music educators. Music and Entertainment Industry Educators Association. And the Collegiate Music Educational National Conference. She teaches copyright basics to music educators.
Butts asks if she has had an occasion to advise schools and institution on copyright matters. DeSalvo said she has and also outlines that work.
DeSalvo said that she has mostly prosecuted infringers. She represents copyright owners.
She said she calls herself a copyright nerd and that she has been labeled as militant about copyright.
She said that she has often lent advice to attorneys litigating copyright issues and has consulted about copyright ownership issues.
Butts: Are you familiar with copyright law as it may apply to performance of songs in an educational setting, such as high school show choirs?
She said yes. She said is also familiar with how it applies to bands and choruses.
Butts: I believe from your testimony you state you are familiar with application of copyright law not just to universities but also to high schools?
DeSalvo said yes and also public elementary, middle and high schools.
She said that she attended the first two days of the hearing in December and heard testimony of the superintendent, which was quite lengthy. She said she also heard Mr. Greenburg. She said she also heard Terri Stewart.
Butts, from listening to Mr. Greenburg, what business is he in?
DeSalvo said it is her understanding he is doing a licensing. That he was working in an academic setting in licensing music. It sounded like his experience was more related to bands and musical performances and not to show choirs.
Butts asked DeSalvo if she had reviewed TPSD policies regarding copyright, that David Meadows referred to in his testimony.
DeSalvo, I am not sure if I would call it a copyright policy. There was an electronic use policy. I did review it. There was a use policy that people were required to sign. There were four policies referred to in his testimony that were said to be copyright policies but did not seem to apply….The policy said you have to obey the law but it doesn’t saw what the law is.
She refers to IJND.R1
In section 1A, it says transmission of any material in violation of federal law or agency guidelines is prohibited. Includes copyright material….She said that covers transmitting copyright material, she would imagine by email and over the internet.
She is referring to another policy, authorized use of school-owned equipment.
DeSalvo said that in the third paragraph from the bottom, it references the district purchasing software for computers. That you need a license and if someone needed a copy, they needed to contact the owner of the software.
She said those were the only two references to copyright. She also reviewed two other polices. Both called “Responsible Access and use.”
DeSalvo said those addresses use of the Internet and email and webpage. It involved transmission of information and said you should transmit resources in an ethical and legal way in compliance with the law.
She said it would be more helpful to know what the law was instead of to say follow the law because, she said, most people already know to follow the law.
Butts: What is your opinion concerning the adequacy of the Tupelo Public School District copyright policy.
Keith objects. Said it presumes that this was ever intended to be a copyright policy and that this is a misrepresentation by Butts.
Butts: During Mr. Meadows’ testimony he asked what copyright policies had been put in place and he mentioned the policies to which DeSalvo referred.
Keith said these were policies that had references to copyright but that he never referred to them as copyright policies.
Butts: If there is a copyright policy of the Tupelo Public School District, we have not found it and it has not been produced.
Keith: We don’t need to have a policy that you can’t violate copyright. We don’t need to have a policy that you can’t speed in a school vehicle.
Compton overrules the objection.
Butts repeats his question, asking DeSalvo’s opinion of Tupelo’s copyright policies.
DeSavlo: My reflection from Mr. Meadow’s testimony. When you inquired what the policies were, he directed you to these, which is why I reviewed them. These are not copyright policies. If they are intended to be copyright polices (they don’t educate anyone on anything other that follow the law) In a specialized area of the law such as copyright it is something people need to be taught, it is not something you can just learn from your moral compass.. I think people generally know not to illegally download music but as far as copyright in an academic setting, it needs to be spelled out a good bit more clearly.
Butts asks DeSalvo about Ellis’ training on copyright law and his understanding of polices. Keith objects because she didn’t hear Ellis’ testimony. Butts said she can rely on conferences with Mr. Ellis. He said experts routinely rely on hearsay evidence.
Butts: If he is going to rely on her expert testimony, she has to give us what she has relied upon as her basis.
Compton sustains to the fact that she has not been tendered as an expert to this point.
Butts said he will tender her as an expert in copyright law at this moment.
Keith said his objection is that Butts has to provide the basis to which she is an expert. Said Butts is not following all of the rules of an expert witness.
Compton said she will have to give the basis of his opinion.
Compton said she can answer the question if she has talked with Mr. Ellis.
Butts: Ms. DeSalvo, did you consult with Mr. Ellis about his practices and how he handled his job at Tupelo High School.
She said yes.
She said she met with Mr. Ellis in person when she was here in December. She also met with Ellis and Butts at Butts’ office. She also heard the superintendent’s testimony, mentions several things Meadows referred to in his testimony. She said she asked Mr. Ellis several questions about the nature of the performances. She said there are six aspects to copyright and one is performance so she asked Mr. Ellis about the nature of performances. She also asked Ellis about how he had conducted the show choir prior to 2011 when an issue came up with an arranger. She spent an hour and a half this week talking to Butts and Ellis so she would have a factual basis of what transpired. She considered there to be a before Hal Leonard and an after Hal Leonard. She also wrote down the song titles that were mentioned in the hearing and found that all of them were (I think she said they were for public use. I didn’t fully get that).
Butts: What was your opinion on how Mr. Ellis
He selected the music the students were going to perform and there choreography done with it. He understood the performances were covers of different songs which are expert from public performance licensing for non-profit educational institutions.
My understanding was that he believed he was covered by an exemption as an educator. What prompted him to look at things more closely was when he got an email from Hal Leonard that an arranger needed to get a license for a musical composition. Before that no arranger had (requested him to get permission).
She said from what she saw, he exercised his best efforts to get information from people he thought were knowledgeable such as Mr. Alderman and Mr. Greenburg. She said Mr. Greenburg gave him a lot of erroneous information.
DeSalvo asked Ellis about his experience and what he had been taught about copyright law. He said he hadn’t been taught about it and that he wasn’t given any information from his principal, his school district or his superintendent that he needed to get copyright.
Butts asks DeSalvo if she has information that Mr. Ellis infringed any copyright laws when he got songs arranged before 2011.
Keith objects, overrules.
DeSalvo said her understanding was that he talked to arrangers and asked them to arrange a song.
Her opinion on that, the law is complicated so she wants to explain….unless there is a written agreement signed by both parties as work for hire, there is nothing where Mr. Ellis was in infringement. If the arranger arranges the song and didn’t secure permission, the arranger committed the infringement not Mr. Ellis. Arrangements are negotiated.
Say I am a owner of a copyright and an arranger comes to me wanting to make an arrangement.
Most publishers want to make money so they agree and they say you can make me an arrangement and you need to pay me so much money. She said the person who does the arrangement is the infringer.
She said in the case where it is done properly, where there is a written agreement, in the school setting it is a little different because there are people out there who make the school the licensee. It is called a work for hire arrangement. When an arranger makes an arrangement without an agreement, he is the author. But if you have an entity like a school who is paying for it and there is a written agreement, the school is the author. To qualify as a work for hire, there has to be a written agreement signed by both parties. In the cases where there is no written agreement with the school and the arranger has not gotten permission from the publisher, it is the arranger who has infringed. Not the school and not Mr. Ellis.
Butts: Do you have an opinion whether Calvin Ellis should have applied for copyright permission for the songs used in his shows before 2011.
Keith objects saying that whether he should have or shouldn’t have was related to his job duties, not a legal question.
Butts rewords asking whether he was required by the law to apply for copyright permissions.
DeSalvo said the arranger would have been required to do that because the arranger was the (one doing the arrangement without a written agreement).
Butts refers to spring of 2011 and a series of emails between Ellis and Hal Leonard, Mark Greenburg, Steve Anderson, etc. He refers to a series of exhibits and asks DeSalvo to describe what was going on.
DeSavlo said most music publishers are not in the business of suing people and that they would rather license the work. It might be a technical violation of the law if you make an arrangement and don’t have a copyright (but most companies won’t law and file a lawsuit, they will notify an arranger).
Butts refers to July 13 email from Daniel Peters of Hal Leonard to Ellis and Atkinson. It said that Alderman made an arrangement of two songs and permission was not obtained. Assuming there was no contract for hire, who was responsible for getting permission for those two songs?
DeSalvo: David Alderman. The arranger.
DeSalvo said it happens commonly with arrangers. They don’t contact the publisher.
Butts: What is your experience in the way these arrangers work…
Keith objects, saying what goes on in the industry is irrelevant to what went on in this district, whether arrangers were asked to secure proper permission.
Butts asks what is her experience about diligence of arrangers in securing copyright permissions prior to 2011. Keith said that is over broad and vague and doesn’t have anything to do with this particular case.
DeSalvo said there are professional music arrangers in Hollywood who that is what they do fulltime. There are two ways works can be work for hire. An employer employee relationship. The second way is a special commissioned work. The hiring party can be the author by entering into a written agreement by both parties. There must be a written agreement by both parties. When it comes to schools in particular, at all levels of education, my experience has been that arrangers and especially people in school districts don’t have information about copyright law. Arrangers arranger often without written agreements, there is a small fee….the question is when do publishers find out about it….the music is now looking at people they never looked at before…There has been a change in the philosophy (Because revenue has gone down so much lately, that music companies are looking for new sources of revenue).
Do you really want to sue a school district? School districts don’t have a lot of money and it is bad PR for a publishing company to go after a church, a school district, the girl scouts. Now that there has been a loss of revenue from (more piracy, publishing companies are going after sources of revenue they didn’t go after before).
Butts: Refers to July 13, 2011 email from Daniel Peters, which raises the subject of an infringement by Mr. Alderman in 2009. Refers to exhibit 5, an email from Ellis to Alderman.
The last two sentences of the first paragraph, Butts said, are Alderman telling Ellis he thinks they are in the clear.
DeSalvo said that sounds to her that Alderman was going to cover the expense.
Butts: when he states all I need to do now is pay them and Tupelo will be cleared, what did Tupelo need to be cleared of?
DeSalvo if he paid the licensing fee, then they would be able to use the arrangement. Hal Leonard would be the owner of the new arrangement and then they license it for use. She said it would only be for Tupelo.
Butts: Was there any liability on the part of the Tupelo Public School District?
By Mr. Alderman, no. There is statutory liability and the person who does the arrangement is the direct infringement. There is also secondary responsibility (which arises out of case law). A third party, such as the school district, can be responsible for the liability of another party. (Said there is contributory infringement….said for the school district to be liable they would have to know that Alderman was infringement and would have had to be privy by participating…A secondary means, is called vicarious liability…
The second kind of liability would be if the school district had a direct financial benefit by what Mr. Alderman did and the school district would have the right and ability to supervise Mr. Alderman. I don’t think any of those facts apply. He wasn’t their employee, he wasn’t under their control and the school district didn’t make any money off Mr. Alderman.
Butts asks about show choir admission fee.
DeSalvo said that is different. She said an arrangement is a different infringement than a performance.
Butts when you said a profit I thought you might be referring to whether they made a profit off their shows.
DeSalvo said if admission is charges it refers to a public performance. It would have to be a public performance and then there is a question whether a performance is exempt. There is a section that exempts non-profit educational institutions from public performance. It is exempt if there is no admission cost or if the admission cost is used for the production of the show and the money left over is used for educational purposes.
The performance of the song would be exempt from licensing so there is no infringement there.
Butts: Do you have an opinion whether Calvin Ellis exposed the school district to liability before 2011.
Keith objects, overruled by Compton.
DeSalvo: I don’t have the facts that he exposed the school district to any liability since he did not infringer. Since he is an employee of the district he would have had to directly infringe and the school district would have had to participate in it.
Butts: Are you aware Mr. Ellis arranged in some arranging?
Said Mr. Ellis did some arranging and was paid by booster club
DeSalvo said an arrangement is a derivative work and if someone created an arrangement, he would have had to have permission to create that derivative work.
Butts: assuming those facts to be true, what would be the liability for the Tupelo Public School District for his arrangement?
DeSalvo: I understand the arrangement was paid for by the booster club which was a separate organization from the Tupelo Public School District, those were funds raised by parents. That comes back to secondary liability….Based on facts I know, school district didn’t do any of these things.
I do want to say though, I heard some reference of significant liability to the school district and I’d like to clarify that. In my opinion, even if Mr. Ellis had created an unauthorized derivative work, he did so innocently. He thought he was doing a cover of a work….First thing a copyright owner would do is to enter in an agreement and have Mr. Ellis pay a fee. Most arrangements are done for a couple of hundred dollars. A company isn’t going to sue over $250. However if you have a militant publisher, the law allows them to go after their damages. The damages would be the amount of the arrangement $250. The law allows (for statutory damages for innocent (or unknowing)copyright between (I think she said) $750 and $30,000. It goes up if you know what you are doing). (In statutory damages, plaintiffs can elect actual damages or statutory damages…..in statutory damages, if the arranger didn’t know what they are doing, it is the discretion of the court to reduce to $200 if the court finds the arranger was not aware).
In my discussions with Mr. Ellis, he said he didn’t know until this one man (informed him. He believed he was performing cover versions of a song for which there is no infringement).
Butts asks about Greenburg’s references of a felony and going to jail.
DeSalvo They are completely wrong. I was shocked when he wrote it in an email and even more when he testified in December. It is absolutely untrue. There are no fines in civil (copyright infringement). There is criminal copyright infringement. (She said that what Ellis did would not fall until any criminal copyright law. Not a felony. Might fall on low end of civil infringement).
There are three things that constitute criminal copyright infringement. He would have to do it for personal gain. He would have to reproduce and distribute music, record the music and put it out in the market place (would have to sell multiple copies for retail value of at least $1,000). Third (refers to case with M&M where someone would steal copy of music before publicly distributed) deals with distributing a work being prepared for commercial distribution.
She said Greenburg’s statement that you can get five years is false. You can get five years (if you put it out there, but there is a dollar amount (I think she said $2,500).
Butts asks DeSalvo her impression of Greenburg’s testimony regarding copyright law.
DeSalvo said he had some knowledge of copyright but knowledge of copyright is different than knowledge of copyright law. Said people in publishing generally know about copyright but usually go to a lawyer with those questions.
She said most people who work in Nashville know that would not be criminal copyright infringement.
Now Butts is asking about 2011. Asks if she is familiar with the fact that an arranger, Steve Anderson requested copyright permissions on the songs he was going to arranger.
Butts asks, with respect to exhibit 24, is it her understanding that Mr. Anderson requested Mr. Ellis to obtain copyright permission for that song.
DeSalvo said, excuse me if I have confused Alderman and Anderson in her testimony.
Butts: I’d like for you to assume if you don’t know that Mr. Ellis had a show choir performance in October of 2011 and he had been working with other arrangers for that show.
Butts: With respect to the songs that arrangers had not requested Mr. Ellis to get copyright permissions was it Mr. Ellis’ obligation to get those permissions?
DeSalvo: That would have been the arranger’s obligation.
It wasn’t that he didn’t need to do anything. The arranger needed it initiate it and it needed to be completed to be an authorized derivative work. Because the arranger did not transfer the authorship to the school district, (it would have remained the arranger’s responsibility).
DeSalvo in the absence of any written agreement for Mr. Ellis to take on those responsibilities, that responsibility lays with the arranger and not Mr. Ellis.
Butts: Did you understand what Mr. Ellis thought he had to do in respect to these songs?
DeSalvo: Prior to the email from Mr. Anderson he thought he could perform the songs.
Butts: After the email from Mr.Anderson, do you know what Mr. Ellis thought was his responsibility for the other arrangers.
DeSalvo: Mr. Ellis got scared because he was now told he had to do something. I saw the communication he had with Mr. Greenburg, someone he thought was knowledgeable to help him email what he needed to do….I understood for the show coming up in October, he was making every effort he could to get the songs ready for the show.
Butts: Even though he didn’t have to for the songs where the arrangers hadn’t said anything about getting permissions.
DeSalvo said that would have been more cautious (to try to get them for those songs).
DeSalvo said the documents that Mr. Anderson had him sign is not how everyone does it. You don’t have to do it this way. Licenses are privately negotiated and they can be done any way. You can just do one line in writing say make an arrangement. It doesn’t have to be for money.
Hearing takes a 10 minute break at 3:27 p.m.
Hearing resumes. DeSalvo is directed to an exhibit with licenses from Cherry Lane Music Company and from Hal Leonard. Ellis signed them on Sept. 6. They don’t have the counter signature from Hal Leonard or from Cherry Lane but Butts said since payment was paid, assume all necessary documentation was completed within about a week.
Butts said say Mr. Ellis had planned for 15 songs to be performed by Wave Connection at the their upcoming October show. On the other 11 songs being arranged by other arrangers, Mr. Anderson was to arrange four songs, but he had 15 songs in his show, assume the other arrangers had not asked for permission. Do you see any legal impediment why Mr. Ellis could not have gone forward with his show on Oct. 22.
DeSalvo said no. She said they could have been publicly performed. The better route would be to know the arranger had permission but it was the arranger’s responsibility, not Mr. Ellis.
“That show could have gone on.”
Butts: At any time during 2011, do you have an opinion whether Mr. Ellis exposed the Tupelo Public School District
DeSalvo said she has an opinion that there was no exposure to the Tupelo Public School District for copyright infringement. She said there would have had to be an act of direct infringement by someone in the school district.
Butts is asking about how governing bodies of institutional education deal with compliance. Keith objects, saying that the question is overly broad and vague. Butts said he is asking about how school districts learn about copyright law, develop policies and train employees. Said it is a general question to establish her expertise. Question is related to high schools.
DeSalvo said her experience has been in high schools, middle schools, elementary schools, that group of teachers does not know much about copyright as a general rule.
She knows that from conferences she attends where she is either educating teachers or in the audience when they are being educated about it. She said her experience has been in high school, elementary and middle school that there is an assumption among a lot of teachers that because they are using copyrighted materials for educational purposes it constitutes fair use. Just because you are a non profit, it doesn’t make every use of copyrighted material fair use. That is the biggest misconception. She said there are professional organizations that focus on educating music educators.
She said that association of school boards has an awesome responsibility because it has to cover a lot of areas of law, including copyright.
She said those organizations have conferences to educate teachers because it seems like on a broad scale, the teachers are woefully uninformed, they are not trained in copyright and they have to rely on their employers to provide information to them. It is a funny phrase, but you don’t know what you don’t know.
She said something very common is teachers photocopy sheet music. They are spending their own money because districts don’t have it in their budget. That is copyright infringement. She hears from teacher after teacher that is fair use. There are exceptions, like an emergency copy. The goal of copyright in education is schools are not exempt, except in some situations like pubic performances (said there are so many complexities in the law, the average educator doesn’t know it unless they study it and they don’t know they need to study it).
Butts: Do you deal with administrators?
She said yes.
Butts asks if he deals with boards of trustees or school boards and DeSalvo said yes.
Butts asks if she is familiar with the ways and means those boards develop copyright procedures. DeSalvo said yes.
Butts asks again whose responsibility is it. Keith objects that she does not know whose responsibility it is. Compton sustains.
Butts: You have reviewed all adequate policies of Tupelo Public School District that pertain or may pertain or mention copyright?
DeSalvo: Yes, as I understood from the superintendent, those were (the policies of the district)
Butts: Does the Tupelo School District have in place an adequate copyright compliance policy?
Butts: In your opinion, is it Calvin Ellis’ obligation as a music teacher to develop an adequate copyright policy.
Keith objects, saying that she has not read Ellis’ job description. Compton sustains.
Question is who is responsible of developing the policies of a school district.
Keith objects. As an expert, she needs to have a foundation for her answer.
DeSalvo answers the school board.
Butts: I’d like for you to assume Tupelo Public School District School Board has five members who are not attorneys and are not experts in copyright law. Who would be responsible for guiding them in developing a policy.
Keith objects again. Compton asks why it matters who helps them develop a policy.
Butts said he is trying to establish how a board as lay people would develop a policy. Keith said that question is too broad and that she hasn’t worked with any board.
Butts asks if she has worked with any school boards
DeSavlo said not in Mississippi. She said that Meadows in his testimony said he had no information about copyright law and that he relied on counsel to the school board (to guide him).
She said she there is also the national association of school boards.
Butts tenders the witness.
Keith: Are you aware it is not called the national association of school boards, it is the national school board association. I want to make sure we are talking about the same entity.
DeSalvo said she is. DeSalvo asks if she is a member of the National School Board Association or if she has attended its conferences. DeSalvo said she is not a member. She has been invited to conferences but has not attended.
Keith is asking about DeSalvo’s resume. Asks where she was from 2008 until 2011. DeSalvo said she maintained a transactional practice working for herself while she taught full time.
Keith said resume is missing page 5, asks if there is something they are not seeing or if it is an omission. Butts said it was a copying error.
DeSalvo said she was first contacted about this matter on Nov. 30, 2011. Butts contacted her and asked her about her experience on copyright involving music educators and advised her he had an employee terminated for violating copyright law. DeSalvo said she has not rendered a written opinion.
Keith asks if she had rendered (any written report). DeSalvo said she hadn’t.
Keith asks whether DeSalvo had been given any previous opinions Mr. Butts or Mr. Ellis had obtained regarding this issue and the claims against Mr. Ellis?
provided any other written opinions about Mr. Ellis’ case. Butts objects.
DeSalvo said that other than the superintendent’s claim, no.
Keith asks about what DeSalvo has in front of her that has been the basis of her decision today. Asks about what documents she has in front of her. He said he also wants to know every piece of paper she has reviewed to give the statements she made today.
She said she reviewed the testimony and exhibits 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 33, 34, 50, 51, 55, 56, 59, 65, 66, 24, 25, 29, 30, She quotes sections of law she reviewed, I believe this is copyright law. She reviewed several websites (ASCAP and BMI, SESAC, most publishers are affiliated with those and all of their music is available for licensing). She looked for all titles Mr. Ellis had used in his last show and found all of those songs were registered through either BMI or ASCAP. Researched if there were specific licenses for high schools, elementary schools or middle schools. Said there aren’t any because they are exempt. She did research of licenses to see if they could be applied to show choir but she couldn’t find any. She only found one case in 100 years of a show choir being sued for copyright infringement. It was a university and it was found to be not guilty because they couldn’t establish secondary liability.
Keith: If you looked at lawsuits, you don’t know if there have been any settlements that did not result in a lawsuit.
DeSalvo: No, I’m sure you couldn’t know that either. No one knows that.
Keith: Because people solve those to stay out of court and have to pay lawyers
DeSalvo: Also because publisher just wants to license their work, they don’t want to sue people.
Keith said they will also sue to send a message. DeSalvo (yes, if repeat offender)
DeSalvo said she also reviewed MTAA.org. She also looked at National School Board ASsocation website.
DeSalvo mentions several articles she read that she got from the National School Board Association to see what was available for school boards.
She also reviewed the blog of the Daily Journal reporter. Said she found it to be fairly accurate so she read it for Monday, Tuesday and Wednesday.
Said she reviewed a contract from Hal Leonard. Keith and Stimpson said they don’t have it and Butts said he doesn’t have it either.
Date is July 12, 2011. From Hal Leonard corporation.
They are trying to figure out what document she is referring to. They said it hadn’t been entered as a document. Butts said it should be in Mr. Ellis’ email in the school and that the district has access to that and he doesn’t. Butts said he got it from David Alderman.
Ellis is not emailing the document on his iPhone to Kelly Stimpson. An interesting moment, somewhat unorthodox.
Hearing takes a three minute break at 4:43 p.m. waiting on receipt of the email.
Hearing will recess until 8:30 a.m. tomorrow morning with DeSalvo still on the stand.