Hearing has recessed until 9 a.m. on Wednesday
Greenburg said his arrangement was to bill both the arranger and the school. He said that if Ellis was the arranger, he would bill Ellis directly, not the school.
Greenburg said his “you’re kidding me” reaction was in response to the song “Fire.”
Greenburg said his interpretation when he saw that was that it was a late submission, but in fact, it was submitted by arranger directly to Hal Leonard who came back to him a couple of months later and wanted to see a score. It was probably submitted initially when our first arrangements came in. What seemed like a really bizarre thing was really a submission made in August that was held up by Hal Leonard.
Stimpson asks about the chart given in October. It says the song “Fire” was submitted in September, but Greenburg said that song was originally submitted to Hal Leonard earlier.
Greenburg said the “Fire” score was originally sent for submission, the first conversation was Oct. 11 of 2011. It said, “Mark how would you feel about taking over submission of ‘Fire.’….The school said they have time and wants to pursue it.”
Greenburg said the entry in his database is incorrect, it was not Sept. 21. He said it was submitted by Mr. Anderson.
Greenburg said that Calvin did not send it to them directly.
Stimpson: You talked about school policy and board policy relative to copyright. Does a school choral director need a policy to tell them about copyright law.
Greenburg: I probably can’t answer that without telling you my own feelings about that.
Stimpson: You told us your feelings before so if you can answer the question by telling us your feelings please do so.
(Greenburg gave long answer. He said that if the music business was any more screwed up, he probably would have invented it. He remembers the first time he heard about Napster and he didn’t believe there was any way to download music for free) I think there is a generational gap I noticed. I’m 48 and I think there are people who are 30 who think all music should be free. I can’t say what goes on in the minds of other people, pushing that envelope and saying, the cases I’ve looked through as far as teachers saying it was for fair use, for a school, for a non-profit, you just want to settle these copyright cases.
The only market for sheet music is almost completely academic.
My own personal feeling is that you would have to know you are doing something that doesn’t pass the smell test.
Stimpson: You mentioned the director at Clinton High School. You mentioned that he had approval for all of his songs.
Greenburg: I would have no way of knowing that because I would have no way of knowing whether we received the totality of his submissions and I don’t know what he performed.
Butts wants to know whether everything he has submitted has been cleared.
Greenburg is checking his database. He said Clinton has five songs cleared and he other songs that are outstanding that are not cleared but probably in 18 minutes, they will have 9 of 12 songs. (Said he has a long conference call with a publisher in 18 minutes)
Mr. Greenburg’s testimony has been completed.
Hearing is recessed until 9 a.m. on Wednesday.
Greenburg said that his understanding is that previously the schools were the ones paying the licensing.
Butts: Did you say that as of today, only three songs had been approved.?
Greenburg: I don’t know how many have been approved. As of October, at that time, only three songs had been approved.
Butts: Do you know when his show was scheduled to take place?
Greenburg: I believe the first week of October.
Butts: Do you know whether he postponed his show trying to get these permissions?
Greenburg: When he sent in these permissions…..permissions go to our licensing department and someone may have said we have more permissions from Tupelo and I said you’re kidding me.
Greenburg said he asked if they were on pre-cleared list and they said no. Then an arranger called and asked for a song that was difficult to clear….I looked and it was a song for Tupelo which shocked me because I was advising Mr. Ellis to look for songs from our pre-cleared list and then seemingly we had all these new song submissions. At that point, I had no idea what was going on and it seemed odd to me.
Butts: How many songs did you have on your pre-cleared list?
Greenburg: Probably 3,500 songs.
Greenburg said it is a database with probably the most popular songs on the planet….I can’t speak to how hard it is to use it, but it is not like it is a list of (rare songs).
Butts: Did you call Calvin about this difficult song to clear?
Greenburg: No I didn’t….Arranger submitted a song and asked if you can clear this song “Fire” by Jimi Hendrix. (Going through Hendrix experience is difficult to get license). There is only a finite amount of time. I told arranger to send me the score…I knew that would take a lot of time, which means you are looking at two months….When he sent it to me and I looked at application and it was Tupelo I was a little stunned….Because I had worked with Calvin personally I couldn’t reconcile that they were working so hard to have their show and so much later in the process they were submitting new requests. It didn’t jive with my willingness to find a choreographer for Tupelo…and then two or three weeks after that phone call, I was still getting musical submissions.
I may have asked Calvin what was going on and he told me he had postponed his show.
Greenburg said he called the arranger and asked if he was kidding me. He said why. I said this guy is out of time and they are asking for a score that will take months….I was concerned because it was coming up so late that I didn’t see….I have permission requests from May that have never cleared yet and marching band season is over. Some of this stuff takes a ridiculously long time. It didn’t seem pragmatic to me that if Calvin was under level of duress he was under he was submitting songs so late in the game.
Greenburg said his general feeling about this whole process of obtaining musical copyright for arrangement permission and what music directors know or don’t know, he has had director at Arizona State apply for John Williams song and Williams doesn’t allow anyone to make derivative works of his music. By the time I got back to Jim, he said I knew that I was just testing to see what you would say.
These directors know where the problems lie, the ones who are compliant.
In the particular case of Calvin because the Hal Leonard letter, there is a school of thought in the licensing business, if you ever stop and say I wonder if I need a license to do that, 99 percent of the time, you need a license to do that….
I find it almost incredulous that someone would not know that they needed to obtain the permission and there is no right that anybody has to make derivative works of music.
It is hard for me to fathom that. It is not hard for me to fathom someone who is not a music educator fathoming that. …
Butts: I started off that question asking about how long would a choral director need to plan a show….
Greenburg: The commonplace practice is that you talk about what you want to do for your show and pick the music, you make sure you can get it cleared, you then hire the choreographer, you would need to know three or four months in advance…That is why our immediate response we are one it, but it is always good to have a plan B.
Butts: You are not a choral director right?
Butts: You are not a music director right?
Butts: Do you have any knowledge with respect for what high school public school districts teach their music educators about copyright?
Greenburg: I have no idea
Butts: What were you doing in Mississippi
Greenburg: Visiting client schools in Mississippi
Butts: Were you dealing with other choral directors with respect to copyright permission?
Butts: What was the nature of your dealings?
Greenburg: visiting with them and talking with them about the status of their permissions, thanking them for their business, (etc.)
Butts: Asks if Greenburg knows the director of Clinton High School’s show choir
Greenburg said he knows him.
Butts asks if he had gotten his copyright permissions. Greenburg said he knows he has.
Butts asks if he submitted all of his songs through him. Greenburg said he had no idea.
Stimpson will now re-direct
Stimpson: Prior to today did you have any discussion with David Butts concerning this case?
Stimpson: Did you give him any conclusions on the issue of copyright violation? Did you advise him Mr. Ellis was in copyright violation?
Greenburg: I didn’t advise him as to whether or not Mr. Ellis was in copyright violation because I have no idea.
Stimpson: If songs on list submitted to you were copied without being cleared is that a copyright violation?
Grenberg: If you are asking me if Mr. Ellis made copies of songs and those songs do not have permission from rights holder, I want to be clear, we are not the only person to provide those rights (if they disseminated that, that is a violation of copyright law).
Stimpson: When Mr. Ellis gave you email from Hal Leonard, did you ask whether fee had been paid.
Greenburg: I was furious with the letter. I’ve seen examples where they sweated arranger for thousands of dollars. If arranger made arrangement without disseminating it, law has not been violated.
What I was furious about Hal Leonard made a specific allegation these were done without their permission. Just making an arrangement was fine, disseminating them was not fine?
Stimpson: Once he indicated they were used, that was a copyright violation?
Stimpson: Submitting in September was late in the process, right?
Greenburg: If the music isn’t music we can clear instantly, it is a calculated risk
Butts is cross-examining Greenburg
Greenburg said he is in Phoenix. He said he has a law degree from Loyola but that he has never practiced law. He said he considers himself an expert in copyright law in the area in which he works.
Butts asks whether he gives advice on copyright law for pay. Greenburg said his company has a legal copyright division staffed by practicing attorneys.
Butts said he is just trying to get an idea about Greenburg’s area of expertise. Greenburg said he does not practice law or represent himself as an attorney. He said he has never represented anyone in a copyright case.
Butts: At the beginning of your examination, Ms. Stimpson said you are testifying by subpoena, is that correct. (Greenburg said yes). How did you get that subpoena.
Greenburg: They emailed it to me because I asked them not to send a marshall to my house.
Greenburg said he works extensively in Mississippi and that he had no idea whether a subpoena would be valid and that he didn’t want to get pulled over and find out he had a bench warrant.
Butts: Did anyone tell you there would be a bench warning if you didn’t testify today
Greenburg: No….I know what happens if you don’t testify when subpoenaed. My hiring an attorney to find out whether a subpoena would be valid or not (wasn’t worth the effort). I decided to err on side of caution.
Greenburg said that neither Keith nor Stimpson told him a bench warrant would be issued if he didn’t testify.
Greenburg said Ellis contacted him. He said his company is not the only one the U.S. that helps get copyright permission. He said he doesn’t know how many companies there are.
Greenburg said he doesn’t know why Ellis contacted him particularly and that he has no knowledge of whether Ellis was trying contact anyone else.
Butts asks if Greenburg has any knowledge of Ellis prior to August. Greenburg said only through letters he received from Hal Leonard.
Butts: How would I know if I want a copyright permission to call you up?
Greenburg: We have a very good business reputation with the arranger community and with the music director community. A lot of publishers will refer….If you call a publisher directly and say I need musical clearance, a lot of them will refer them to us.
Butts asks if Greenburg is a go-between from person who needs permission and person who grants the permission. Greenburg said yes. He said he provides a service for publishers to reach out to schools so schools will comply.
Butts: I take it that in August or September of this year, Calvin Ellis contacted you to get your assistance. What prompted him to call you in the first place?
Greenburg: Generally speaking, when a school calls us, I would say 100 percent of every school that has ever called us has said we really need help in getting our permissions (said they don’t want to talk to Hal Leonard again) and said we need you to help us. That is probably with certainty how the conversation with Calvin Ellis started off, some level of exasperation.
Butts: Did Calvin tell you a reason he was calling you was because he had what he perceived to be a problem with Hal Leonard.
Greenburg: We got into handling this specific type of rights about a year ago because so many schools and clients and universities had trouble getting permission from Hal Leonard. Hal Leonard had put a stranglehold on it. Schools had nothing to play.
It took a while for people to understand the difference between a digital permission right and a paper permission right. Once word spread that people could get permissions from us spread (people began calling and saying wow, I’ve had a heck of a time with Hal Leonard).
Butts: Is Calvin Ellis the first choral director who ever had a problem with Hal Leonard.
Butts: Tell us about the problems music directors are having with Hal Leonard and other ([publishers).
Greenburg: Hal Leonard has consistently ….Prior to say 1990, if you wanted a permission to make a derivative work, that meant you had to make your arrangements of the music, draw it out by hand on musical notation paper and you had to photocopy it and disseminate it. Prior to early 90s, Hal Leonard and a handful of other print agents had more of less corned the market for printed sheet music. (Given so much money to publishers for exclusive rights) So Hal Leonard has printing presses and they are belting out sheet music and selling it all over the place.
Because of the advent of the digital millennium and proliferation of software that allowed you to create new arrangements of music on your computer and convert to PDF files and send them around digitally, Hal Leonard took position that any digital dissemination of music is very threatening to selling of sheet music ….you can deliver it electronically and people can print it. Hal Leonard developed this approach where if arranger said I want to make a marching band arrangement of a Beatles song (Hal Leonard would allow it, they would perform it, another school would see it and like it. They would call Hal Leonard and he would say so and so has already arranged that for another school so for him to do it for your school we will charge you more money. Said that because intellectual property doesn’t enjoy anti-trust, Hal Leonard could therefore force schools to buy arrangements they have already made. That turned out to be fallacious. Ohio State marching band has no woodwinds, can’t use same arrangement as Auburn, MSU or Ole Miss. Custom arranging isn’t practical. But in mindset of Hal Leonard, anyone making arrangement that wasn’t Hal Leonard is a competitor. They would scare arrangers to death to the point that a lot of schools said they would not seek arrangement permissions and would write and perform their own music. You can imagine how horrible that was. Also Hal Leonard would pick its spots and arrange in litigation of certain schools that were using their music without rights. )
The difference between a digital right and a print right, it is like you are walking down road and need to make an arrangement. Do I want to make it on paper and photocopy or do I want to distribute it digitally and give each person a copy. We grant non-exclusive digital rights from our publishers. That is sort of the atmospheres that pervades the industry that would have led any band director or choir director to call us.
Butts: Assume a derivative work is being created. Let’s say Calvin Ellis wants a particular song in his show choir performance but it needs to be rearranged so it can be performed by show choir. What he needs is a derivative work, is that correct?
Butts: Unless he does it himself, he would need to go to an arranger to get derivative work?
Greenburg: That is correct
Butts: To create that work he needs to hire an arranger, but since it is a derivative work it must have copyright permission?
Greenburg: That is correct.
Butts asks whether arranger or school needs to get the permission. Greenburg said Hal Leonard and the law looks at it as both the school and the arranger are liable.
Greenburg: I think everyone in the publishing industry looks at it the same way in that they just want to get paid. One thing we do that is different, rather than wondering who is going to pay you,…one of the conundrums Hal Leonard has found themselves in is (they don’t know if they will get check from school or from arranger) So the approach we have adopted at our company, is we find it infinitely preferable to work with arranger because arranger is already set up with the school district as a vendor.
In some instances, arrangers will say they don’t’ want to get involved with billing the school. When we bill a school for the permission, generally it is much slower because there is confusion as school district level, needs to get us set up as a vendor and it is time consuming. When we have an arranger that sits on us billing a school, we tell them we will be giving bad service to the school by slowing down the delivery of the music.
Butts: How long have you been doing it that way.
Greenburg: Since we started granting permission, eight months, nine months.
Butts: Do you know what the practice in the industry has been before the last eight months?
Greenburg: They had this crazy dual paypoint system that made no sense to us.
Stimpson: Is the dissemination of arranged music without permission a copyright infringement.
Greenburg: If the dissemination is in tangible form, no matter how fleeting the tangibility is, the 9 th circuit has held that is an infringement of copyright law.
Stimpson asks for explanation
Greenburg: easier way for me to explain this is this way. If you had a particular piece of music and you had a very skilled band and band director said have you heard this Lady Gaga song. Lady Gaga songs are written on back on napkin and there are (no physical copies of the music ) If you went in front of band and played it for band and said first four notes are (said several notes quickly), now go ahead. If you band was skilled and could pick up tempo, you would be making a work that was communicated and never tangible, you would not need permission. If you put on blackboard, made copy, did it electronically (several other examples) and you didn’t have permission you would have infringed on copyright.
(Says it is not violation of copyright law if you sit at home and compose with pen and paper but it you disseminate it in tangible form, it is a violation of copyright issue)
Greenburg: It has nothing to do with the performance of the music. It is that you are making a physical representation of sheet music. That right to make a derivative of that work and put it on paper and disseminate it is a right that has to come from the right holder.
Stimpson: You had indicated you are not the copyright police and you have testified that tried to help your clients obtain copyrights to music, is that correct?
Stimpson is done with Greenburg. Hearing takes a five-minute break at 4:33 p.m.
Stimpson refers Greenburg to another email exchange between Ellis and Greenburg.
In another email, Ellis told Greenburg, “Yes we did use these arrangements.”
Stimpson: What did that mean?
Greenburg: Calvin told me that Tupelo had had a previous run-in with Hal Leonard company over copyright infringement and I (asked him for documentation of it). They made a specific allegation that Mr. Ellis and the arranger had made arrangements without obtaining permission and that they were going to fine them without obtaining copyright law.
I asked them if they ever used these arrangements, had they used arrangements without permission?
Stimpson: After he advised you that he did use those arrangements, did you give him any other advise on that arrangement?
Stimpson refers to another exhibit, an email from Ellis to Greenburg sent on Sept. 25, 2011. In the email Ellis said he still doesn’t feel like he has a clear solution to the problem. Stimpson asks about a second page, a response email from Greenburg to Ellis on Sept. 24. Greenburg’s response provided times prior to the weekend phone conversation.
Stimpson refers to another exhibit, a Sept. 29 email from Calvin Ellis to Greenburg, asking if he had heard anything. Stimpson referred to Greenburg’s response.: “Calvin I want to be very polite to you because you are a customer and a nice guy. When we hear something, we will tell you.”
Greenburg said there were two rounds of submissions, one at the end of August and one three weeks late.
Stimpson: On Sept. 14, you received an email from Mr. Ellis. After which you emailed him the same day saying the fine was the last time you would worry about. You testified you were alarmed when you received Mr. Ellis’ email. What were you alarmed about?
Greenburg: I was alarmed about the question he asked because I interpreted his question to be if I don’t get permission I will perform this anyway so what is the fine I would be facing.
Stimpson directs him to a Sept. 23, 2011 email from Ellis to Greenburg. In email, Ellis said he wanted to apologize for his second email. Said only one song was on his cleared list and that he doesn’t know what to do. Said if he had more money to get those songs learned and choreographed he would go that route without a doubt. Ellis said in the email he is about to loose his mind over this.
Greenburg said he was trying at that time to help Ellis obtain copyright permission of those songs.
Stimpson: Did you speak with Mr. Ellis that weekend?
Stimpson: What did you advise Mr. Ellis.
Greenburg: I advised him that I had no way of knowing whether what he had asked for would be cleared in a four-week time frame. I told him I knew a lot of people in Mississippi at the university and that I would try to find choreographers to come out to Tupelo to help the kids and to pick pre-cleared music and go that route.
Stimpson asked when that conversation was.
Greenburg said it was probably Saturday the 24 th or Sunday the 25 th .
Stimpson asked how long the conversation was. Greenburg said it was probably 20 or 25 minutes.
Stimpson asked who else Greenburg spoke to about Tupelo copyright issues
Greenburg: Ron Jones and Linda McEachran. Said he spoke to them to help Ellis with his problem.
Greenburg said Jones is a very important arranger with a greater amount of experience in world of showchoir than he does and that he was concerned about his conversation with Ellis.
Stimpson asks whether Jones gave Greenburg advice for how to help Mr. Ellis.
Greenburg said no.
Stimpson: What was the result of your conversation with Mr. Jones.
Greenburg: Mr. Jones indicated the only possible solution was to go with the plan I had outlined, we would have to use material instantly clearable where we could obtain the copyright permissions and to go from there.
Stimpson: Was that with the knowledge that the Wave Connection show was scheduled to be four weeks from that time?
Greenburg said that was correct.
Stimpson asks whether Ellis mentioned he had booked a choreographer in July and that the numbers were already choreographed for his show choir.
Greenburg: He did tell me that, yes.
Stimpson asks whether it is typical to have choreography paid for before copyright is approved?
Greenburg said no.
Stimpson: Out of your clients, have you ever had anyone ask the question before, what is the fine for stealing music?
Greenburg: I have never had anyone ask our firm if I….There are two questions. I have had people ask our firm, we are in trouble here, I didn’t get a permission, we are in violation of copyright law, what is the fine we are facing. I have never had anyone ask me in advance, if I were to not obtain the copyrights what would happen?
Stimpson asks about telephone call to Linda.
Greenburg: It was a conference call between Linda and Ron Jones about how to help Calvin and for his own clarification whether or not people in the show choir world paid for the choreography before they knew whether or not they could get permission to perform the music.
Stimpson asked whether they did.
Greenburg: My specific question was is it normal fro people in show choir world to pay for choreography when they would not (know for sure they had the rights to that music)
Stimpson: What was the answer
Greenburg: The answer I was told was that was no the norm in the showchoir world as far as those two individuals knew.
Stimpson refers Greenburg to a document he was asked to provide for the school district after Ellis had asked him to contact the superintendent.
Stimpson: Looking at first entry, can you tell me what date you received that?
Greenburg: Said probably 8-29. (Song was called “Round the World.”)
When someone looks at our data base, we know green songs have been approved.
Second entry was submitted by another teacher. Third, fourth and fifth songs belong to a universal publishing company and are in limbo. Greenburg received the request for those on Aug. 29.
Stimpson asks about the next three songs. They are songs that Ron Jones submitted directly for Calvin Ellis. Greenburg said at the time, he told Mr. Jones, he could not get Queen material. That is no longer the case. It was “Pressure” and “Under Pressure.” We told Mr. Jones he would have to obtain that information from Hal Leonard and he canceled that request from us.
Stimpson asks about four other songs. Greenburg said those were four songs Ellis submitted with them right around Sept. 21.
Stimpson “Speed of Sound” “Fire” “Cold Shoulder” and “Freeze.”
Next two entries are “More” and “Written in the Stars.” Stimpson asks what the approval status of those songs was. Greenburg said “More” was rolling right and “Written in the Stars” was approved by Warner 10 days later.
Stimpson asks how many of Ellis’ songs had been approved at this time? Greenburg said that is correct.
Stimpson asks when was the date that was sent over. Greenburg said Oct. 20.
Stimpson asks that as of Oct. 20, of all the songs submitted by Calvin Ellis, were only three approved?
Greenburg said that was correct.
Stimpson refers him to a Sept. 6 email. Asks Greenburg to describe it. He says it is an email exchange between Mr. Ellis and himself.
Greenburg reads in email that it could take a couple of weeks to get permissions and that he was enclosing a backup list of songs.
Stimpson: What does a pre-cleared list mean?
Greenburg: It is a list of songs where we have a rolling right to continue granting permission to use those songs. These transactions are small-dollar transactions so must publishers don’t want me asking them every time someone needs a $150 license. It is an industry under tremendous financial stress and they don’t have a lot of people to handle these small requests. Once we have a rolling right, we can quickly grant a license.
Stimpson: About how many songs on pre-cleared list?
Greenburg: At one time there were 3,200 songs. There are probably 3,500 or maybe more.
Stimpson: You sent that to Mr. Ellis because those numbers are quick to turn around, is that correct?
Stimpson: Why were you suggesting Mr. Ellis have a plan B?
Greenburg talks about three rights can it be recorded, performed or arranged (I think I caught that correctly). He said rights about performing publicly or having it be arranged are rights that a rights holder can refuse for no reason. Said there are artists, believe it or not, who don’t want their work performed by show choirs, marching bands, etc. Because we don’t know that until we approach a publisher, we tell a client it is really good to have a plan B in place (in case music you selected is not granted by publisher). It may not be your first choice, but it is better than nothing.
Stimpson refers him to exhibit 9, a Sept. 14 email. Email from Ellis to Greenburg at 9:01 p.m. It says “Hi Mark, I need your advice….” Stimpson asks Greenburg to read a paragraph. Ellis said in the email he just became aware of issues of copyright law at the end of last school year, said it didn’t realize it was required for each arranger so he is “working backwards.”
Stimpson asks Greenburg whether he has seen this situation before.
Greenburg: I think your question is really vague.
Stimpson asks Greenburg to read on. Ellis asks in the email what is the fine for performing songs without granted permission. Asks what is the fine and what is the usual fee.
Stimpson asks him what he advised Mr. Ellis.
Greenburg: I advised Mr. Ellis in writing not to even consider stealing music or being involved in performing music or disseminating arrangements where there is no permission granted. I explained it wasn’t the fine that should be a concern, it is a felony. To steal music and get a felony tag over stealing a piece of music was a very poor decision and that it is such a phenomenal risk. It is the same advice I would give anyone not to do it.
Stimpson references him to the Sept. 14 from Greenburg to Ellis. It is his response to Ellis’ previous email.
Stimpson asks him the purpose for sending the email.
Greenburg said when he saw Ellis’ request about what is the fine for playing music if he doesn’t have copyright, he was alarmed and he wanted to explain to Ellis the ramifications of what he was doing, not as an enforcement person but to tell him what was at stake
Witness is Mark Greenburg
Employed by Tresona Multimeida
Stimpson: You are here by virtue of a subpoena is that correct?
Greenburg said Tresona Multimedia is a “right’s access” company. Said they take care of all of the intellectual property needs from arrangement permission through broadcast licensing to facilitate monetization of those assets.
Greenburg said he has clients in Mississippi: USM, Mississippi State, Pearl River CC and probably 20 or 30 different high schools, including Tupelo High School.
Stimpson: Tell us what your background is
Greenburg: I am a business man and I have a variety of different companies I own or work for
He said as CEO of Tresona he deals with issues of licensing, working with publishers. He deals with every issue that affects the company monetarily.
Stimpson: Do you know Mr Ellis? How?
Greenburg: Mr. Ellis is a music director at Tupelo High School for one of the show choir programs?
I know Mr. Ellis, I speak to him on the phone. I never met him in person. I believe it was the end of August or beginning of September (of this year).
Greenburg said Mr. Ellis submitted a request for arrangement permissions to our firm or arrangers submitted requests and listed Mr. Ellis as the music director at Tupelo High School. Interaction was by email or on the telephone.
Greenburg has exhibits that were sent to him. Stimpson refers him to email from Aug. 30.
Stimpson asks him what the document is.
Greenburg: It looks like an email from Calvin Ellis to me and at the bottom is an email from me to Calvin Ellis. It is in reference to a phone conversation I had with him.
Stimpson asks about phone conversation. Greenburg said he wanted to have permission for arrangements two people had made for other schools. He said Mr. Ellis mentioned he was buying pre-existing arrangements from these two arrangers. Said an arrangement belongs to the publisher. So once an arrangement makes an arrangement it is done on a work for hire basis almost exclusively. It would be very rare unless it was in public domain. Said one can not make an arrangement for Tupelo High School and turn around and sell that arrangement to Jackson Academy because you would have to get permission from publisher and would be selling something you don’t own.
Greenburg said the rights we give to arrangers are rights that are school specific. When Calvin said he is buying pre-existing arrangements, I wanted him to understand he would have to buy a custom arrangement and not an arrangement that had been given to a particular school because we had no authority to give that permission.
Stimpson: Did you explain that to Mr. Ellis?
Greenburg: Yes, just in a note.
Greenburg said he copied the two arrangers because he didn’t want anyone to run afoul of copyright laws. Said it is an issue of nomenclature, doesn’t want anyone under impression that Tresona is selling arrangements to multiple schools because we have not given them that right and we don’t want publishers to believe their rights had been violated. It was just a word of caution.
Greenburg said the two arrangers (I didn’t catch their name) do frequent business with Tresona and that they are very talented.
Stimpson refers Greenburg to an email. She asks him about Ellis’ Aug. 30 reply.
Stimpson asks what Ellis sent to Greenburg before the email. Greenburg said it was probably an email with a list of songs he wanted to clear.
Stimpson submits exhibit 33, an email she just referred to.
It appears that the next witness will be communicating via the Internet. A large computer monitor has been wheeled to the witness stand.
Witness will be Mark Greenburg via the computer, maybe Skype?
Meadows said teachers were trained last year on the Mississippi Code of Conduct. It was also included in all contracts. Meadows reads three items from that code that prohibit sexual innuendo, texting and social networking with a student.
Keith refers Meadows to exhibit 22. Asks what right Mr. Ellis has to chastise a student for not attending an event if it is not a school sanctioned event.
Meadows said none whatsoever.
Keith asked what Ellis did and Meadows said that Ellis chastised the student and the parent.
Keith said he is finished with the witness
At 2:58 p.m., Meadows leaves the stand. By my count, he has been on the stand for more than 10 hours. Now, we're moving.
I did not catch whom the next witness is but I will not it when he/she comes.
Under questioning from Keith, Meadows said the superintendent is the only person with authority to terminate an employee. He said the process would be to open an investigation. He would have central office staff and principal help with that and help gather data. He would have the employee share whichever information he would like to share.
Keith said you were asked abut your personal knowledge to these events. Do did talk to Mr. Ellis and personally review those documents, is that correct? Meadows said yes.
Keith: What is your expectation of all district employees regarding the law?
Meadows: We expect them to follow the law.
Keith asks if employees can pick and choose which laws to follow. Meadows said no.
Keith: Who do you expect to follow the copyright laws in your school district with regard to sheet music use, any music material that might be copyrighted.
Meadows said professional staff in choir department and elementary music teachers. He said he expects teachers to be aware of those laws so the district doesn’t enter into a violation that could open the district up to claims of liability.
Keith: Does following the law have to be in an employee’s job description?
Meadows: No sir.
Keith asks how district makes its policies available. Meadows said they are available through computer and all teachers have access to district-owned laptop and wireless services so they can get on TPSD website and read policies.
Keith: you were asked of violations of thousands of copies of sheet music, are you aware of those?
Meadows: To my knowledge that has never happened.
Same question asked about copies of math textbooks and Meadows said he was not aware of any such violations.
Keith: Have any of your teachers had a course in criminal law
Meadows: I do not know whether any teachers have had a course in criminal law.
Keith: Do you expect you teachers to follow all laws in this state and nation?
Meadows: yes sir I do.
Keith refers to questions this morning about copyright law, refers Meadows to exhibit 5.
Keith: That exhibit is an email exchange between Calvin Ellis and David Alderman. Asks Meadows to read a sentence from an email.
Meadows: The main problem is that show choir directors need to have music right away but technically you are not supposed to even arrange the song until permissions have been received.
Meadows said that was dated July of 2011.
Keith refers him to exhibit 7, another email between Ellis and Alderman. Asks Meadows to read a sentence.
Meadows: Yes you have to get permission for each song (or each school?) you arrange for.
Keith: Who was asking for Mr. Alderman’s advise?
Meadows: Mr. Ellis
Keith refers him to an email between Ellis and Mark Greenburg. Asks who was seeking advice of Mr. Greenburg. Meadows said, “Mr. Ellis.”
Refers to another email between Ellis and Greenburg, reference to $150,000 fine and that arranging music without permission is a felony. Email is from September 2011.
Keith refers to exhibit 11. Asks Meadows to read a sentence.
Butts objects because it was all brought out on original testimony and on cross. Butts said he is just repeating his direct examination.
Keith: How many songs did Mr. Greenburg saw were approved as of Sept. 23.
Meadows: Only one song.
Keith refers to Sept. 29 email from parents regarding emergency meeting. Email says still waiting for permissions of a few songs. Keith asks if Meadows knows of any songs approved between Sept. 23 and Sept. 29. Meadows said he does not.
Keith refers to exhibit 3, email between Ellis and Daniel Peters.
Keith: Do you have any information Mr. Ellis took a position adverse to this information about copyright infringement?
Meadows said no, Ellis did not tell his principal or him.
Keith asks whether Ellis came to him at any point about copyright issues. Meadows said no.
Keith asks Meadows what knowledge he had that he would fire Ellis when they had met on Oct. 13 or on Oct. 18. Meadows said he didn’t have any.
Keith: You were asked several questions about who suggested that you should fire Mr. Ellis. Whose decision was it to dismiss Mr. Ellis
Meadows: It was mine and mine alone.
Keith refers to exhibit with Ellis’ salary and supplement
Meadows: The supplement is for doing all of those things needed to support our choral students for performing at the very highest level, including supervision and doing all of those instructional things including arranging and adjusting the choreography as needed.
Keith asks whether any duties are excluded from the $9,000 supplement.
Meadows said none are.
Keith: How would that supplement rate to others?
Meadows: As far as I know, it is the highest supplement given to any person in our music or choral program and it is one of the highest in the district.
Keith asks about the football coach’s supplement whether all of his specific duties are listed. Meadows said they are not.
Meadows: said, no sir it does not.
Keith asks whether the football club or any other staff member is paid by a booster club. Meadows said not to his knowledge.
Meadows said performance of show choir is not an issue in this hearing. He said that what they do is exceptional.
Keith asks whether Meadows has the ability to visit any department with any regularity. Meadows said he does not.
Keith asks about letter of administrative leave, exhibit 27. Why was that letter necessary?
Meadows: In order to fair investigate the allegations against Mr. Ellis it was necessary to hopefully protect Mr. Ellis’ privacy (and obtain the facts)
Keith asks if Ellis was permanently barred from conduct with students. Meadows said he was not.
Keith asks about policy prohibiting staff from being paid for tutoring their students. Meadows said there is such a policy.
Keith asks about exception that Ellis was given.
Meadows said Mr. Ellis was granted an exemption to that policy where he was able to teach the students during the school day privately after school hours.
Keith asks how many students were affected by this?
Meadows said there were eight students on this list.
Keith: How long was that ban going to stay in existence?
Meadows: Only to point I could conduct a complete and fair investigation.
Keith: Was that investigation complete on Oct. 28 when you gave him the letter?
Keith refers Meadows to a document, licensed staff descriptor pay plan. It lists supplement for show choir director and for all other positions that receive supplements.
Hearing takes a five-minute break at 2:39 p.m.
Butts asks if a teacher was having sex with students off school process would that be enough to fire that teacher? Meadows said he would handle that situation the same way he did with Ellis, investigate the matter to give the student due process.
Butts asks question again. Meadows said yes (he would fire the teacher) as long as it was understood he would go through due process and try to protect the teacher as he did with Ellis in this case.
Butts asks what if a teacher was found drunk every day, whether that would be sufficient ground to fire the teacher? Meadows said yes, if given the opportunity to conduct an investigation.
Butts, if you found out a teacher in your district had repeatedly disseminated pornography on the Internet, would you fire that teacher? Meadows said yes, if after a thorough investigation, I would recommend that.
Butts concludes his cross-examination of Meadows.
Keith will soon begin his redirect.
Butts asks about emails produced from Mr. Ellis’ private email account. And that Meadows has access to Mr. Ellis’ entire school email account. Meadows said yes.
Butts asks whether Meadows has ever sent an email to Ellis’ private email address.
Meadows said he doesn’t know.
Butts asks whether he has received emails from district employees from their private emails rather than a school email.
Meadows said he doesn’t know.
Butts: Did you ever send an email to Jason Harris at his private email address
Meadows said only if Harris sent him an email from his private address and Meadows hit reply. Meadows said he does not know what Harris’ private email address is.
Butts said he was asking previously about what personal knowledge he had of what goes into producing successful show choirs. Butts said I believe you said the sum total of your knowledge is that you had attended some performances. Meadows said that is correct.
Butts asks if Meadows knows personally how that is funded. Meadows said no.
Butts said Meadows if the district allocates annually a budget for Sound Wave and Wave Connection. Meadows said it allocated money annually for the Tupelo choral program.
Butts: Would it surprise you to know it costs about $180,000 a year to run and pay for sets, transportation, costumes, meals, rooms, etc.
Meadows: What do you mean by surprise?
Butts: Are you aware of that fact?
Meadows: Yes sir, I am.
Butts: Does the district pay for that?
Meadows: The district allocates an amount….I don’t know what portion if any it pays for that $180,000.
Butts: How big is the choral department budget?
Meadows: I do not know the amount of that budget.
Butts: Did you not investigate that at all before you made these charges against Mr. Ellis for squandering Tupelo Public School District funds?
Meadows: I don’t recall looking at that budget.
Meadows said the charge said squandering funds. He said the part of that charge he was most interested in was that a Tupelo school employee was using funds in an irresponsible manner.
Butts: What facts do you base your charge or what sources of information do you have?
Meadows: I have seen invoices where choreographers paid to arrange music. Mr. Ellis would either not use that music or would turn around and charge the booster club for the same music.
Butts asked Meadows if he could choreograph or arrange music. Meadows said he couldn’t. Butts asks how he knows what goes into the process.
Meadows: When you charge for rearranging music that has already been arranged, that is included in the $9,000-plus that the district pays Mr. Ellis for a supplement.
Butts asks Meadows if he knows whether music needs to be rearranged before a show. Meadows said he does not know but that those duties are included in Ellis’ supplement. Butts said that is not listed in Ellis’ supplement.
Butts asks whether Meadows has looked at Ellis’ job description. Meadows said he last looked at it (the job description for teacher of music in the Tupelo Public School District) when he hired the last THS choral director, Susie White Williams.
Butts said that Mr. Ellis did not recommend Susie White Wiliams for that job. Meadows said he did not know that.
Butts: Is there anything in that job description that says this pay includes arranging for the show choirs.
Meadows: Nothing other than the fact that we have in there any and other duties assigned by the superintendent.
Butts: I asked you is it in there in black and white.
Meadows: My answer is no other than that it is included in that statement.
Butts: By virtue of the fact that you know practically nothing about show choirs and how to put on a show choir show, how would you know he was in a position to squander any money?
Meadows: He charged the booster club for something that was in his supplement.
Butts: You are talking about charging twice for the same choreography?
Butts: How do you know he squandered money for choreography.
Meadows: When he arranges something over or arranges it for himself he is doing something that is included in his $9,000 supplement.
Butts: Please show me in that job description anything that shows that any money for choreography is included in that.
Meadows refers to statement about any and other duties
Butts: You said he has to perform any duty that superintendent or designee assigns him?
Butts: Show me when and how you ever assigned him as part of his job to arrange, rearrange, choreograph or rechoreograph songs.
Meadows said he never went to Ellis and told him specifically he needed to do those duties but said he also doesn’t go to football coaches and tell them what they need to do, etc.
Butts: Have you ever seen in writing where Mr. Ellis was informed that his job was to arrange and choreograph?
Meadows said we have a job description that says any and all other duties.
Butts: Show me anything where you assigned to him the duties to arrange, rearrange, choreograph, etc.
Keith: that has been asked and answered, just as he said for football coach, teacher, etc.
Compton: I think we need to move on.
Butts: If you will refer to Mississippi Code of Ethics and Standards of Conduct (which Meadows referred to in the termination letter), do you contend that his conduct in accompanying students to Walmart to buy items of a sexually oriented nature which were utilized after on some students cars to be a violation of that contract?
Meadows: yes sir
Butts: You have made several previous claims about sexually explicit items.
Meadows yes sir
Butts asks if it occurred during school hours or on school property. Meadows said no.
Meadows said the sleepover or whatever it was called that occurred at Mr. Ellis’ house and the subsequent trip to Walmart occurred during a school sanctioned event.
Butts asks if Meadows is aware this sleepover has been a tradition for Soundwave and Wave Connection for years and there haven’t been previous problems.
Meadows said he had never had it reported to him where a teacher had students over at his or her house without other adults present.
Butts: Forget the going to Walmar.
Meadows: I can’t forget it. (laughter)
Butts said it has been a tradition in Tupleo long before Ellis came and it had never been claimed to be a school sanctioned event until now?
Keith objects to Butts’ laughing and giggling between questions.
Compton said he expects professional conduct.
Butts: Do you not know that for years an event called Hair and Makeup night and bonding night for the guys has occurred as a tradition for Wave Connection and Sound Wave.
Meadows: Yes, I understand it was a tradition.
Butts: Do you also know that all of the previous years no one ever claimed this was a school event that needed permission slips, ect.
Meadows: I don’t know that.
Butts: You claimed that this year it was a school event and needed to be approved by someone in the administration?
Butts: Getting back to the conduct condoms, bananas, Vaseline and all that, do you agree that took place off school property but Mr. Ellis engaged in (conduct that was enough to get him fired)
Meadows: If I had been dealing with only that one item, I don’t know that we would be sitting here. As this investigation expanded, almost like peeling away an onion I found other examples….(Butts cut him off and Keith objects).
Butts: If Ellis obtained in that conduct would that be enough to fire him.
Meadows: yes, I think it would have been sufficient, but I was dealing with much more and I found in the course of the investigation there was a consistent pattern of poor judgment.
Butts presents Meadows with the TPSD acceptable use policy. He asks which part of that policy deals with copyright infringement.
Meadows said that three pages in, it is identified with IJND-RI. If you turn to page 2, four pages into his document, near the bottom it says “Copyrighted material must not be connected to the district’s network without author’s permission.”
Butts: (Re-reads that policy) Copyrighted material must not be placed on any system connected to the district network. What is the district network?
Meadows: Computer network.
Butts: Copyrighted material must not be placed on district network without the author’s permission….As far as the attachment is concerned, exhibit 25, does that exhibit make any reference to copyrighted material?
Meadows: It says I agree to use district electronic system in a professional, legal and ethical matter.
Butts: What does that have to do with obtaining copyrighted permission for the performance of showchoir?
Meadows: There was an exhibit introduced yesterday that employees of our district abide by local laws, state and federal laws.
Butts: That is a lot to know, isn’t it?
Meadows: Not if you are a teacher in Tupelo Public School District.
Butts: So a teacher is supposed to know federal copyright law?
Meadows: No sir. He gives an example where a math teacher should know not to go to a math textbook and make copies of the textbook for unauthorized use.
Butts questions to the effect of how are teachers to know local ordinances and state law. He asks if Meadows expects teachers to be familiar with entire MS code?
Meadows: I guess what I am saying is the example I gave. If it is a math teacher (they will use good judgment and not use our system to make multiple copies of it).
Butts: If math teacher struck a student with a textbook should they know whether they committed simple or aggravated assault.
Meadows said no but that he essentially expects teachers to have the judgment to know what is appropriate.
Butts said how are they to know what is appropriate unless they know what the law is.
Meadows said they can’t know but they can use good judgment and ask before they do it.
Butts: Who would they ask?
Meadows said they can start with the principal and move to a district level positon. Meadows said if he doesn’t know he will seek the advise of counsel.
Butts asks about MS standards for educator conduct.
Hearing resumes with David Butts cross-examining David Meadows. Butts is asking Meadows about certain TPSD policies.
Butts presents Meadows with a letter he wrote on Oct. 7. Butts said this is three weeks before Ellis was fired. It is from Meadows to the parent of a student Ellis was giving private tutoring to.
Butts: How did you get this parent’s name?
Meadows said he asked Ellis to give him a list of the students he was tutoring privately.
Meadows said he believes he sent out eight such letters.
Butts asks Meadows to read the letter without reading the name. The letter notes Mississippi Educator Code of Ethics. It says that in light of new code of ethics, school board is looking at its policies, including tutoring for pay and staff conflict of interest. It says that pending board’s review any and all private tutoring given by a teacher or a coach is to be immediately suspended.
Butts asks if Meadows consulted his counsel before sending out letter. Meadows said he did.
Butts: Did you believe you had legal authority to (suspend any and all private lessons?)
Meadows: I believed I had duty to safeguard the students because I was investigating an incident….(cut off)
Butts: My question is did you think you had the legal authority to cut off private lessons when you wrote this letter?
Meadows: What I believe is that I have the duty I previously described.
Butts chuckles. He says I asked you to instruct the witness to answer the question.
Compton: Can you act like you are in a court of law and be more professional.
Butts apologizes, said he got frustrated.
Butts asks the question again about legal authority.
Meadows said he didn’t know but that he felt he had duty to protect the students.
Butts: It is correct you sent this letter out without knowing you had the legal authority to do so.
Meadows: I’ve answered it the only way I know how to answer it.
Butts said he is about to engage in another extended line of questioning and recommends a recess for lunch.
Hearing is recessed until 1.
Butts presents Meadows with a letter that was given to Ellis when he was placed on administrative leave on Oct. 6. He asks Meadows to read that letter. It was written by Meadows and Jim Turner and was also signed by Jason Harris.
Butts: Who gave it to him?
Meadows: Mr. Turner and Mr. Harris
Butts: Why does it instruct him to have no contact with students who are having private lessons with him?
Meadows said Ellis compromised safety of students by having male students at his house and driving them to Walmart to buy sexually suggestive items. I didn’t know what I was dealing with.
Butts: Now you are telling us that is your concern as far as his students who are taking private voice lessons with him. I don’t understand the relationship, can you explain that?
Meadows: The students taking private voice lessons with him and the students at Tupelo High School are one in the same. We were dealing with the Mississippi Code of Educator Conduct and stand 4 deals with felonies (inappropriate relationships with students) and I did not know what I was dealing with.
Meadows said he wanted to get the testimony of these students free from any taining from Mr. Ellis.
Butts: How long have you know Mr. Ellis.
Meadows: I’ve know of Mr. Ellis. Before this incident, I really didn’t’ know him personally (Said they had met on a couple of occasions).
Butts: Did you have any particular problems with him?
Meadows: No sir.
Butts: Did you have any problems with his character?
Meadows: I knew his students put on good productions.
Butts: Did you talk to students about him>
Meadows: I don’t typically talk to students about their teachers unless they come to me.
Butts asked Meadows if he was familiar with Ellis’ reputation in the community, with his faith, his morals, his work ethic. Meadows said he wasn’t.
Butts asks Meadows about not allowing Ellis to have contact with students he had a contract with to teach voice lessons.
Meadows said he had a higher obligation to the safety of student and conduct an investigation in a fair manner. He said when you put students into an automobile you cross a line from a professional relationship into a buddy relationship.
Butts: If he disregarded your command and lived up to his contract with his voice students, he would be found to be insubordinate, is that right?
Meadows: Yes because I had a higher obligation for protecting students.
Butts: Insubordination itself is a grounds to be discharged, is that right?
Meadows: Yes sir, it is
Butts said the supplement document doesn’t say anything about Ellis’ duties beyond teaching and supervising students. He said it doesn’t say anything about choreography or arranging. Meadows said that is correct.
Butts submits that document as an exhibit.
Butts: Has the district paid any fines or damages for any copyright infringement.
Meadows said he has to refer to one of these documents. Notes exhibit 3, email from Daniel Peters to Ellis and Atkinson. It says yesterday he sent Mr. Alderman an agreement to retroactiviely copyright these songs. The agreement notes fees and a small additional fee for violating copyright law.
Butts: You didn’t understand my question. Has the district paid any fine or fee to date for violating copyright law.
Meadows: I believe that states a fee was paid.
Butts: By whom.
Meadows said he doesn’t know where the money came from. Said there is money in choral budget for copyrights or it could have been paid by the booster club.
Butts: You are telling me you are charging Calvin Ellis with significant copyright infringement but you don’t know if the district has paid a dime for that infringement to date?
Meadows: I charged Mr. Ellis for subjecting the district to possible liability.
Butts: Has the district paid any fine or damage, and please understand, has the district paid any fine or damage to date for any copyright violation?
Meadows: Depending on who paid….
Compton: No has the district paid any fines for copyright violation?
Meadows: Not to my knowledge unless those fines were paid out of the choral budget.
Meadows said he doesn’t know whether it was paid from the choral budget.
Butts: Don’t you think it is your responsibility to know that as of today whether any fines or damages have been paid for copyright fines or infringement?
Meadows: There are two people who would be responsible for telling me that information, Ms. Linda Pannel and Ms. Rachel Murphree. Said neither of them have told him.
Butts: Do we need to bring them in here to tell us?
Compton: That is immaterial because the charge is subjecting the district to potential liability not actual liability.
Why does it matter if they did pay it? He is not charged with making the district liable for it.
Butts: If he is charged with violating 100 copyrights and the district has paid one, I understand it might be reasonable for the district to say we might have to pay on 99 more.
Butts asks a subpoena in standard be issued for Ms. Linda Pannel and Ms. Rachel Murphree.
Butts: Does the district carry liability insurance for copyright infringement?
Meadows: I don’t know that detail but I know the district does carry liability insurance?
Butts: Has any carrier been notified. Meadows said no.
Butts (to Compton): You and I both are attorney sand we carry malpractice insurance. When we know of facts that might subject us to malpractice we notify or insurance. That is not dependent on any malpractice being filed but just on knowing the facts.
Compton: Yes sir
Butts: That is the same thing here. Why hadn’t he notified carrier.
Meadows: I was waiting for a document (stating a demand from someone)
Butts: Asks if Meadows has read his policy.
Meadows said he hadn’t, had only been on the job since April.
Butts asks if he had discussed with district attorneys, concerning notifying insurance company.
Meadows said he vaguely recalls discussing with one of them whether the insurance company should be put on notice.
Butts: What are the duties of administrative counsel (Kelly Stimpson)
Keith objects, saying that is irrelevant. Compton asks for the relevance of the question. Butts said he wants to know whether it falls in purview of district counsel to inform of possible copyright violation.
Butts said he is not asking what advice was given. Just asking is it part of administrative counsel’s duties to advise the district on copyright laws or anything?
Keith: Mr. objection again is the duites of administrative counsel are irrelevant to this proceeding.
Compton: Is there a job description for administrative counsel.
Meadows said he doesn’t know.
Compton: Have you had any discussions with Ms. Stimpson dealing with copyright.
Meadows: I don’t remember. I vaguely recall getting counsel from Mr. Keith or Ms. Stimpson.
Compton: That was dealing with possible claim, beside that do you ever remember having a conversation with Ms. Stimpson about copyrigt.
Meadows: Yes I do.
Butts: When was that?
Meadows: I don’t remember
Compton: Any idea?
Meadows: I believe in the last six months.
Butts: Other than that conference, have you consulted with her or any of the district attorneys on copyright law.
Meadows: I don’t recall any other discussions.
Butts: Would you know whether or not any of your proceeding superintendents consulted with counsel regarding copyright.
Meadows: I do not.
Butts: When you assumed your duties had you received any document or anything the subject of which was copyright law.
Meadows: I have learned since April the superintendent receives lots of information. When you saw anything that opens a wide mass of information. I don’t recall getting anything on copyright.
Butts: Is there any way to locate any such thing?
Meadows: Not that I am aware of
Butts: Has anyting been preserved?
Meadows: There are a lot of documents. I can not say if one had been preserved.
Butts: Would you agree your showchoirs have had outstanding success over last five, six years?
Meadows: Yes sir
Butts: As far as running those programs would you agree he has done a good job?
Meadows: No sir I would not.
Butts: Strictly in terms of performing, would you say he has done a good job?
Meadows: No sir, I would not.
Butts You have concerns about the performances?
Meadows: The safety of the kids is a concern.
After being pressed, Meadows said the performance of the kids was terrific.
Butts: The choirs he has taught during the day have performed well in the state competitions?
Meadows: As far as I know, yes.
Butts: Your office is down at the administrative offices?
Meadows: Yes sir.
Butts: Do you visit choral department at Tupelo High School with any regularity
Meadows: As much as a superintendent can. I recall visiting the choral department two times since April.
Butts: Have you attended any (show choir performances)?)
Meadows: No sir, I have not
Butts: Have you been present while Mr. Ellis and his wife have (built sets, designed costumes, chosen music, participated in arrangement, etc.)
Meadows said no, he hadn’t. Said those were the responsibilities of the choral director.
Butts asks if TPSD assumes responsibility for chartering buses and signing contracts and paying for the charters.
Meadows: Said from time to time the administration does.
Butts: Do you provide charter buses or do you provide what we called the yellow dogs?
Meadows mentions two other buses beyond the yellow buses, the Golden Wave buses. Said he doesn’t know whether the show choir has used those buses.
Butts asks what Meadows does know about show choirs.
Meadows said he knows that Mr. Ellis is responsible for it.
Butts: Is that all you know?
Meadows: Other than the performances I have attended from time to time.
Butts: Did you enjoy those performances?
Meadows: Yes sir.
Hearing resumes at 10:40 after 15 minute break.
Butts asks Meadows whether he consulted with Mr. Otis Tims or with anyone else at Michell McNutt and Tims. Meadows said he hadn’t.
Butts is presenting Meadows with school district policy IJND-E (I think I got the number correct). Meadows said it is technology resource and electronic use agreement, said it is the electronic resource policy he was referencing yesterday.
Meadows said this is an exhibit to that policy. Butts submits it as an exhibit to the hearing.
Butts: As a result of any action by Calvin Ellis with respect to copyrights, has anyone filed a lawsuit against the district, to date?
Meadows: No sir, not that I am aware of.
Butts: Has anyone threatened to file a lawsuit connected to actions of Calvin Ellis.
Meadows: No sir, unless you take those emails as threat of possible lawsuit.
Butts: Do you take those as threats of possible lawsuit?
Meadows: I take them as possibly opening the district up to a possible lawsuit.
Butts: Has the district been notified of any copyright infringement by Mr. Ellis since the date of his termination?
Meadows: Not that I am aware of
Butts: This is outside copyright area. Prior to Oct. 28, 2011, did anyone make a demand to you that Mr. Ellis be fired?
Meadows: No sir.
Butts: Did anyone suggest he should be fired?
Meadows: No sir.
Butts: Did anyone, state to you or anyone else in the administration to your knowledge that Mr. Ellis should be fired?
Meadows: Not to me and not to my knowledge anyone else in the administration.
Butts: Did a board member demand Mr. Ellis be fired, that you are aware of?
Meadows: No sir
Butts: Do you know of any teacher making any such demands?
Meadows: No sir, I do not.
Butts: Do you know of any parent (make any such demands)
Meadows: No sir I do not.
Butts: Do you know any member of the public (make any such demands)
Meadows: No sir, not to my knowledge
Butts brings Meadows a document. Meadows said it is the state of Mississippi contract of employment with MS school districts. It is Mr. Calvin Leroy Ellis’ contract.
Butts: This is Mr. Ellis’ employment contract for 2011-12 school year. He is employed as what?
Meadows: Teachers/ music
Butts: What is his base salary?
Butts: There is an attachment, what is that?
Meadows: This is an attachment that shows base salary as well as a supplement for added duties.
Butts: How much is that supplement?
Butts: Why si that supplement given?
Meadows: It is given to coaches and others who have added duties beyond the regular school day.
Butts: You have supplements for many in the school district, would you describe a few of them.
Meadows: Coaches, music teachers, leaders of clubs, band directors.
Butts: Why are they given supplements?
Meadows: It is for added time outside of the school day
Butts: I always assume teachers are paid for time outside of school hours when they are supervising students, like a football coach, coaching students.
Meadows: That is where supplement would come in for a football coach.
Butts: So football team, do they practice entirely after school or do they get to use a period during the school day?
Meadows: I am not sure of the schedule, it could varry.
Butts: In the case of a football coach, he has football practice after school so he is out there superivising the team, is that the purpose of the supplement?
Meadows: This would work similar to the supplement Mr. Ellis would receive?
Butts: His supplement would also go for out of town games….
Meadows: Yes sir.
Butts: That is what his supplement is for.
Meadows: That and all sort of added duty. Making a playbook, reviewing film, making sure equipment is ready, making sure facilities are safe for students, all those comprehensive things.
Butts: Perhaps I am more familiar with that since I played football but never was in the show choir. What did his supplement require?
Meadows: All types of supervision of students, for planning, for ensuring their safety, for making surre facilities were maintained. He would also have to, like a coach’s playbook, he would be expected to write a choreograph or arrange for the students?
Butts: Do you know if Mr. Ellis is a choreographer?
Meadows: I do not.
Butts: Do you expect him to arrange?
Meadows (expects him to have knowledge of that in same way as football coach writes playbook and that he could match it to students in choir).
Butts: As I expect it, when he signed this contract, he should have knowledge of arranging?
Meadows: Yes sir
Butts: Before you hired him for this job, did you ensure that he had knowledge in choreography and arranging?
Meadows: Yes sir, he has a Class A license with the proper endorsements and he has eight years experience. That assures me that he has proper knowledge.
Butts: Where do I find the curriculum?
Meadows: You are referring to a document the state department of education prepares. I believe they are called Mississippi frameworks.
Compton (in response to a Keith objection of a Butts question): Did you contact any of the individuals these emails were from concerning the content of these emails?
Meadows: No sir.
Butts: With respect to everything you relied on, what knowledge do you have that the legal conclusions contained in the documents were in fact correct?
Meadows: I am not an attorney, but I depended on the documents to stand on their face value. That is what I used in making my judgment to write charge 1.
Butts: My question is did you seek counsel from anyone to see that statements in the email were in fact true….Do you have any knowledge of whether or not the legal conclusions such as violations of copyright law in those emails are correct?
Meadows: I took those documents at their face value. That was my knowledge.
Butts: So you relied on persons you don’t even know who made legal statements and assertions of fact and charged Mr. Ellis with that.
(Keith objects….Those documents are full of representations by a person Meadows knows well, Ellis)
Butts: Did Mr. Ellis in the emails represent that he was an expert in copyright law?
Meadows: As far as I know, no, but I expect a choral director to know enough about copyright law to keep themselves and the district out of trouble.
Butts: Mr. Ellis is not a lawyer, is he?
Meadows: I don’t know
Butts asks a question about whether anyone told Meadows (counsel) that it was a violation of copyright law. Keith objects on grounds of attorney-client privilege. Butts said he wanted to know whether anyone provided him information about copyright law.
Compton: Did you seek any advice whether copyright law had been violated by Mr Ellis?
Butts: What is potential liability.
Meadows: Can I refer to a document? (Butts says yes). The first document I will refer to is one of the emails, exhibit 9. The particular sentence that led me to potential liability factor is “what is the fine for performing these songs without permission?” What caught my permission was Mr. Ellis was acknowledging that he knew there was a fine involved if he did not have permission for those songs?
Meadows refers to another email, “we became aware of copyright law at the end of last school year” and did realize it was required for every song we perform.
Meadows: I interpreted it as Mr. Ellis became aware of copyright law at the end of the last school year and that he was concerned about the October show and was possibly even considering (violating the law)
Butts: Are you speculating here?
Meadows: No sir, I pondered the facts very carefully.
Butts: Would you not take it from that email if Mr. Ellis had concern, his concern revolved from the fact that he (expected arrangers to get copyright permissions?)
Meadows: No sir, not to me.
Butts: Do you that if someone violates copyright they can be fined?
Meadows: Yes sir, I do.
Buts: How do you know that?
Meadows: I can Google it and find out whatever I want to.
Butts: Did you Google it?
Meadows: I did not.
Butts: That is one source, what is another.
Meadows: I got legal advice.
Butts: Can we stipulate throughout this process that the charges of copyright law were on the consultation of Ms. Stimpson and Mr. Keith
Keith: We have no problem with that.
Butts: Thank you for simplifying it. We can go on.
At the time you had the charge, what evidence did you have that that information was in fact correct
Meadows: I took those documents for fact and used the fact that they had Mr. Elli’s name on them.
Butts: Is it not true that you have no personal knowledge that any of this information is in fact true.
If the facts in those exhibits are not true, then your conclusion is also not true.
Meadows: You are asking me a hypothetical question and I stand by what I said.
Butts repeats his question.
Keith objects on basis of ambiguity on his representation of the facts. Is he talking about some or all of the facts?
Compton: Mr. Meadows, if you had not had those emails, would you have made the charge of a copyright violation?
Meadows: No sir.
Butts refers to exhibit 3, an email from Daniel Peters to Ellis and Deborah Atkinson.
Refers to second paragraph. Butts said it states “In 2009, Mr. Alderman created an arrangement of “Ask the Lonely.” Butts said do you know that statement to be true?
Meadows: I accepted that document to be correct.
Butts: Did you call Mr. Peters and ask him?
Meadows: No sir, I did not.
Butts: So the only information you relied upon to make this charge is from some person named Daniel Peters.
Butts asks a series of questions establishing that Meadows does not know Mr. Peters, his expertise, his company, his knowledge of copyright law. Asks similar questions about Hal Leonard.
Meadows: I accepted this email at face value for what it said.
Butts: I am referring to permission for “I Drove all Night” and “Ask the Lonely.”
Meadows refers to correlation between the documents.
Exchange getting heated.
Meadows refers to an email where Ellis said that a lot of arrangers don’t go through this process. You and Steve are the only arrangers who have required me to do this. (I didn’t get whom you and Steve is referring to). Meadows said he also referred to exhibit 11, email from Ellis to Greenburg. Ellis said only one song on the cleared list is on his show list. He doesn’t know what else to do.
Meadows said those were some of the correlations he made.
Butts: You relied solely on these statements. You didn’t have any personal knowledge?
Meadows: Yes, I relied on those emails.
Butts: Did you consult with Mr. Ellis and ask him about it.
Meadows: This document was provided from an attorney to Tupelo Public School District. Mr. Bill Beasley.
Butts: Is his name on there?
Meadows: No sir it is not, but I believe that letter is from Mr. Bill Beasley.
Butts: My question is did you ever speak to Mr. Ellis personally?
Meadows: The reason I brought this document up is Mr. Ellis spoke with this document when we met on Oct. 13 for about four hours. During that time, instead of telling me about copyright permissions, I don’t recall us talking about copyright permissions but Mr. Ellis addresses it in his letter. I gave him the opportunity to talk about copyright permissions.
Butts: Did he exploit that opportunity?
Meadows: No sir, he did not.
Butts: The same question I asked about half a dozen questions ago. Did you ever personally talk with Calvin Ellis about obtaining copyright permissions, failing to obtain copyright permissions, the process of obtaining copyright permissions or his ongoing work in obtaining copyright permissions?
Meadows: Yes I did talk to him about his work obtaining copyright permissions.
Butts: That is one of four things, I take it you did not talk to him about the other three (paraphrase)
Meadows: No sir, that is not true, in that four-hour meeting he had an opportunity to talk abut it.
Butts: Did you tell him he could talk about it?
Meadows: I feel an employee of the Tupelo Public School District should feel free to talk with me about anything they choose….I think that opened the door for Mr. Ellis to tell me whatever he had on his mind.
Butts: Conference occurred on Oct. 13 but you didn’t charge him on Oct. 28…How was he going to know you were going to fire him for violating copyrights two weeks before you did it.?
Meadows: He should have known about copyright violations prior to Oct. 13 and what a serious issue it was.
Butts: But you knew it by Oct. 13? Why didn’t you talk about?
Meadows: I don’t know why we did. I thought he would but that was not one of the issues he chose to talk about.
Butts: Don’t you think it was your obligation to present him with what you knew?
Meadows: I thought it was my obligation to hear whatever he wanted to say.
Butts: Do you feel it is your obligation to be fair?
Meadows: I was being fair?
Butts: Do you feel it is your obligation to be fair to your teachers?
Meadows: I do feel it is an obligation to be fair?
Butts: Do you feel it is your obligation to call Mr. Ellis in and discuss charges that are or may be against him and give him an opportunity to explain.
Meadows: I thought it was my obligation to call Mr. Ellis in and give him an opportunity to explain whatever he wanted to me.
Butts: Was he aware that time that you were going to charge him with charge 5, endangering students on a field trip in Alabama. Were you aware of charge 5.
Meadows: I am not sure when I became aware that Mr. Ellis had a pattern of failing to supervise students.
Butts: I am not asking you about a pattern.
Compton: When we you aware of students being left in Alabama.
Meadows: I do not know whether it was before or after Oct. 13 meeting. That meeting was a turning point. Afterward, investigation expanded based on allegations he made that I had to investigate…The investigation expanded to the point, the investigative team and I, we literally could not keep up with all the information that was coming in.
Butts: You certainly knew about it by Oct. 28.
Meadows: Yes sir.
Butts: Did you call him into office and say lets sit down and have a talk about abandoning and endangering students by leaving them in Alabama?
Meadows: No sir, I did not.
Meadows said there was another meeting on Oct. 18. Butts asks if he talked about any charges then. Meadows said he asked Ellis to keep a log of his efforts to obtain copyright permissions.
Butts: Would it be fair to say that on Oct. 18 what you discussed was the then current situation of obtaining permissions for the show choirs. What I understand is you were instructing him to prepare a log….Did yall discuss all of these emails about particular songs?
Meadows: By that point, there had been so much information coming into my office that led to trustworthiness and forthrightness of Mr. Ellis.
Compton: Mr Meadows, listen to the question, if it can be answered yes or no, answer it yes or no and then you can explain your answer.
Butts: All I am asking you is was there any time….Did you ever have a meeting with Mr. Ellis where we were going to sit down and discuss (all the charges?)
Meadows: You realize, that letter was not written on that day. So no I did not specifically talk to him because that letter had not been written and I was still contemplating all the information I had been told.
Butts: Lets go to the moment in time on Oct. 28, the hour, minute and second you signed your name on that letter. At any point before that did you call Mr. Ellis and discuss this with him?
Meadows: No, sir, but he was free at any time to come into my office and discuss this with him.
Butts: So the answer is no, you never gave him an opportunity to explain? Is that right?
Meadows, exhibit 5 is an email from Mr. Ellis on July 12, 2011. To David at Allegro Music.com. Regarding a Hal Leonard problem. Ellis said can you explain the entire process to me.
Meadows reads an earlier email from Alderman to Ellis. Said he thought he was in the clear until he received notice that he was in copyright violation on those two songs. All Tupelo High School needs to do is pay them and it will be in the clear. Said the whole thing has been a misunderstanding.
Meadows said the next piece of information he considered is exhibit 6. From Daniel Peters to Calvin Ellis. It explained that it was great for Tupelo and Mr. Alderman if he was going to send in payment for signed agreements for Mr. Alderman can move forward with his other requests. Said we always make the school the licensee on these arrangements and never make the arranger the licensee. This means your school may keep the arrangement on file for use in the future. Said it is up to the school and the arranger to determine who makes the payment.
Meadows said he also considered exhibit 7, an email from Alderman to Ellis. It is regarding the Hal Leonard problem. It says that you need to get permission for each school you arrange for.
Meadows refers to exhibit 8. An email from Ellis to Terry Steward. I think Meadows said the date was Sept.14, 2011. Ellis said “I think we are in the clear with the copyright stuff. I hear no news means good news in that area.”
Meadows refers to exhibit 9. An email on Sept. 14, 2011 from Ellis to Mark Greenburg. ( he is at a publishing company I didn’t get the name). Ellis asks for advice. Said he became aware of copyright issues at the end of last year. Asks what is the fine for performing songs without permission. I would never purposefully want to do something like this but I am worried about a song not being performed if we don’t get permission.
Meadows refers to email from Greenburg to Ellis on Sept. 14. “Here is the first thing, the fine is the last thing I would worry about and it is 150,000. We do not any enforcement but that is not what I would be worried about. Distributing music without permission is a felony and no one wants to be the one a publisher makes and example of when they see it on YouTube….Then they say didn’t you tell them it was denied and we say, yes we did. Then it puts you in a position where you knowingly stole the music…I personally think it is an insane risk and as a law school graduate I can tell you a felony tag would ruin your life, your marriage, your career, etc., all over a piece of music.”
Meadows refers to exhibit 11. Email from Ellis to Mark Greenburg. Dated Sept. 23.
Meadows refers to exhibit 13, email from Ellis to boosters saying he will cancel Wave Connection’s fall show and he does not want to risk reputation of THS by going forward with the show without copyright permission. Says he loves the kids but not enough to go to prison for them.
Meadows refers to exhibit 14, email to Ellis noting that he did not get permission for the song”Fire.”
Meadows said those were the facts he considered.
Butts asks Meadows when Keith helped him with legal counsel for Calvin Ellis’ termination letter.
Meadows district has used Mr Keith for quite a number of years to seek legal advice.
Butts: When was he hired to represent the district in this particular case.
Meadows: Mr. Keith has been used by the district across a number of years.
Butts: You do not remember the first date you met with Mr. Keith concerning Mr. Ellis?
Meadows: Middle of September
Butts: Do you know what Mr. Keith’s contact with the district is? Do you know how much he is being paid? Do you know how much Ms. Stimpson is being paid?
Meadows: No sir, I do not
Butts refers to the termination letter. Asks Meadows to read paragraph number 1.
Meadows: You have subjected the district to potential liability due to your violation of copyright laws.
Butts: Please state the factual and legal basis of that charge.
Jim Keith objects as it states to legal decision. John Compton sustains.
Butts: He is the one who should know what the legal and factual basis of that charge is.
Keith: My objection is to the fact that is asks him to make a legal conclusion.
Compton: I will allow factual basis, not legal basis.
Butts: You are not being asked to answer the legal basis for that charge. Who would know the legal basis of that charge?
Meadows: I consulted legal counsel for that charge.
Meadows: I used various emails, one of which is exhibit 3. Mentioned two examples where David Alderman had created arrangements for THS show choir where permission was not obtained for those copyrights. As mentions emails where Ellis said that during May and June many copyright expenses had occurred.
Day two of the Calvin Ellis hearing is about to begin. I will again be providing a live blog here. David Meadows will be on the stand when we start.