Case Document 29-2 Filed 06/15/18 Page 1 of 35 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACUSETTS THOMAS J. MACDONALD, a/k/a an individual, and TOMMY MAC ENTERPRISES, INC., a successor in interest to THOMAS J. MACDONALD FINE FURNITURE INC., a Massachusetts corporation, Plaintiffs, -against- WGBH EDUCATIONAL FOUNDATION, a charitable non-pro?t Massachusetts corporation, THE TAUNTON PRESS, INC., and LAURIE DONNELLY, an individual, Defendants. Civil No. SUPPLEMENTAL DECLARATION OF LAURIE DONNELLY IN OPPOSITION TO PLAINTIFF THOMAS J. MOTION FOR PRELIMINARY INJUNCTION 1, Laurie Donnelly, under penalty of perjury, declare and state as follows: 1. I am the Executive Producer of the national PBS series Rough Cut with Fine Woodworking and the Director, Lifestyle Programming, for WGBH Educational Foundation I previously submitted a declaration on behalf of WGBH in opposition to Mr. Thomas J. MacDonald?s Motion for Preliminary Injunction. I submit this Supplemental Declaration to address new claims raised by Mr. MacDonald in his reply declaration dated May 15, 2018. 2. This Supplemental Declaration and the facts set out below are based on my own personal knowledge, on the books and records of WGBH to which I have access, of which I am a custodian, or which I otherwise maintain. If called upon to do so, I could and would testify competently to the statements set forth below. {masons Case Document 29-2 Filed 06/15/18 Page 2 of 35 1. PROPOSED REMEDY 3. In his initial papers, Mr. MacDonald requested that WGBH stop using the name ROUGH CUT, stop using the name TOMMY MAC, stop using any photograph or image of Mr. MacDonald, stop promoting or otherwise referring to the current season of Rough Cut with Fine Woodworking as Season 8, and include a disclaimer at the end of each of the 13 episodes of Rough Cut with Fine Woodworking. It now appears that Mr. MacDonald is only seeking a disclaimer which he claims would remedy any likely confusion and would not result in any signi?cant hardship to WGBH. Mr. MacDonald is wrong on both counts. 4. As of June 15, 2018, all 13 episodes of the current season of Rough Cut with Fine Woodworking have been ?lmed and edited, packaged, and delivered to American Public Television our series distributor. The ?rst 11 episodes of the current season will have been delivered to public television stations across the country by June 16, 2018, with the ?nal 2 being delivered by June 30, 2018. All of the episodes that have been delivered to date have been or will be made available for streaming on The Taunton Press, Inc.?s dedicated Fine Woodworking website ?newoodworking. tv. Further, CREATE, a lifestyle multicast digital channel broadcast by many public television stations, will be adding the entire 13 episodes of Rough Cut with Fine Woodworking to its programming on June 21 for a six-week run as part of a block of how-to programs that include This Old House and Ask This Old House. Public television stations would have further rights for repeat broadcasts for twenty weeks. 5. To add a disclaimer as has been requested would require WGBH to ask APT and would require APT to alert public television stations nationwide to stop running all episodes of the series distributed to date, to ask that they refrain from airing any episodes until the disclaimer is edited into the program, and to delay sending episodes to our broadcast partners, our digital 2 Case Document 29-2 Filed 06/15/18 Page 3 of 35 platforms and to the CREATE channel. This will interrupt schedules that already have been announced by these parties, that already have appeared in and weekly public television station print and web program guides for their members, and force these stations and the CREATE channel to scramble to ?nd interim replacement programs at possible additional cost to them and without the bene?t of having the time to publicize the new programs through ?tune in? spots or local programming guides. This short notice also may preclude platforms such as TiVo and DirecTV from having correct program listings. It also will affect our co-producer The Taunton Press by removing content from its Fine Woodworking website. 6. In order to include the disclaimer, we would have to re-edit all 13 episodes. This could take several days leaving our distribution platforms without the promised content and would require editing, technical evaluation (quality control for audio and video), and ?xing the caption ?le (the closed captioning subtitles required by the FCC would need to be re-timed and re?attached to the program master to adjust for the new timing of the re-edited episode). All of the episodes would then need to be sent to APT and re-distributed to the public television stations. The combined costs of this would be in excess of $13,000. Of greater concern is that once the series is ?pulled? and schedules are changed, there is no guarantee that stations will resume carrying the series which will harm not just WGBH but also our production partners and corporate underwriters. 7. Leaving aside the logistical dif?culties of adding a disclaimer, requiring a disclaimer forces WGBH to include content in its programming that is not of its choosing. Further, there is no evidence that a disclaimer is necessary. 8. The current season of Rough Cut with Fine Woodworking has been available since April 7, 2018 when the ?rst episode ran. According to TRAC Media, as of the date of this 1 3 Case Document 29-2 Filed 06/15/18 Page 4 of 35 declaration the show has aired on over two hundred public television stations reaching over 77 million households nationally. As of June 19, the series will have had 2,057 telecasts nationally. We are not aware of a single instance in which anybody who saw the show believed that it was associated with or sponsored by Mr. MacDonald. We have not received a single comment from any viewers regarding confusion or from WGBH audience services, and no such concerns or comments have been forwarded to us from either our co?producer The Taunton Press or from American Public Television, the series distributor. Further, Mr. MacDonald has provided no such evidence of confusion. This is not surprising. There is little possibility that any viewer would be confused given that our current host Torn McLaughlin is clearly identi?ed as the host and there is no reference to Mr. MacDonald in the show title or in the show itself. Since there has been no confusion caused by the show title or by the show, there is no need for a disclaimer. 9. Further, adding a disclaimer of the type that Mr. MacDonald proposes could actually create an association between the current season of Rough Cut and Mr. MacDonald that does not presently exist. 10. In addition, the disclaimer language being proposed is erroneous. Mr. MacDonald would have WGBH state that Rough Cut with Fine Woodworking is ?different? from Rough Cut Woodworking with Tommy Mac. But it is in fact a continuation of the Rough Cut series that WGBH has been producing since 2010. It has a different host but the gist of the program remains the same. 11. Finally, on the issue of a disclaimer, Mr. MacDonald claims that WGBH does not want to include a disclaimer because it would result in our program being rejected by distributors or funders. WGBH has never made that assertion. We raised a concern that if the show could not be called Rough Cut, that could affect the participation of distributors or funders because (F2650328 4 Case Document 29-2 Filed 06/15/18 Page 5 of 35 they would not understand what our program was or that it was a continuation of our long? established series. The concerns raised about a disclaimer are those set forth above, namely that it would create ?nancial hardship, it would interfere with the scheduling of programming, and it likely would create more confusion. II. ADVERTISING AND PROMOTION OF ROUGH CUT WITH FINE WOOD WORKING 12. As I stated in my earlier declaration, WGBH has never used Mr. MacDonald?s name or image to promote the current season of Rough Cut with Fine Woodworking. While Mr. MacDonald states in his declaration that he does not believe my statement, he offers no facts or evidence to the contrary. 13. As a preliminary matter, it would not be in interests or in the interests of our co?producer The Taunton Press to engage in any type of advertising that did not clearly identify the show title, our collaboration with the publication Fine Woodworking, and our new host. 14. Mr. MacDonald seems to suggest that we are withholding the materials that WGBH sent to third parties in connection with advertising and promoting Rough Cut with Fine Woodworking because they use his name or likeness. He is wrong. None of our promotional and marketing materials use or refer to him. And it would make no sense to do so. For the most part, the communications to the public television stations are sent by our series distributor American Public Television. Attached as Exhibit 17 is the communication that our distributor made available to the stations. This was made available in February, 2018. The material does not refer to Mr. MacDonald or include his picture. 15. In terms of how listing services such as TV Guide, DirecTV and others get information about show times and show names, this information is provided by third parties such (mesons 1 5 Case Document 29-2 Filed 06/15/18 Page 6 of 35 as TiVo and Nielsen who acquired Gracenote. Gracenote provides reference information for millions of movie and television listings. These third parties base their information on listings provided by our distributor APT. We have been assured that our distributor sent the correct information. Listings are generated through the third party?s automatic content recognition technology. The employees of these entities then revise the listings as they see ?t but do so independently of us. WGBH has no control over this technology or the content that is examined. Mr. MacDonald suggests that WGBH should have sent out a list of promotional restrictions related to the new season to third parties such as DirecTV. But WGBH has no such obligations to or agreements with listing companies and it is not a regular part of our business practice. Indeed, I am not aware of WGBH ever providing third party listing agents with information for any of our shows. In addition, given that our show for 2018 was entitled Rough Cut with Fine Woodworking and featured Tom McLaughlin, there was no reason to tell third parties who listed our program that they should not use a title that was not being used and that they should not depict Mr. MacDonald who was not part of the show. 16. Once we became aware of an initial listing error by TiVo, we made the decision to contact all entities to whom APT provided listing information (regardless of whether there were errors in the listings) to remind them that the listings for the new season of Rough Cut should not include any image, photo, likeness of or reference to Mr. MacDonald and should not be promoted under any name other than Rough Cut with Fine Woodworking. This included Comcast, Gracenote, YItelevision, Tribune and CBS Interactive. We cannot guarantee compliance with our requests as we have no partnership with any of the listing entities, we cannot control their activities, and we exercise no control or ownership over any of the materials they publish. The listing services provide information independently and without our sign off. 1 6 Case Document 29-2 Filed 06/15/18 Page 7 of 35 17. As of the date of this declaration, WGBH has been advised that: DirecTV is displaying the proper title name and image in connection with the promotion of our show (see Exhibit 18); TiVo has been using the proper title since March 2018 and has now further con?rmed that it has made corrections to the imagery that it provides with the title for all of the seasons (see Exhibit and TV Guide, which takes its information from TiVo, has assured us that it will correct its data. 111. USE OF ROUGH CUT 18. With respect to Mr. MacDonald?s claims about his use of The Rough Cut Show, he notes in his reply declaration at Paragraph 3 that he used the name for video blogs from 2006- 2009. However, according to a post he made in December 2009, he was rebranding and presumably moving away from ?the old Rough Cut show.? See Exhibit 20. From what we can see on his current tommymac. us website, he seems to be moving to a new subscription service and is using names including How 2 Build It All, How 2 and/or THome Improvement. See Exhibit 21. 19. During the negotiations that led to the entry into the Project Participation Agreement nobody raised with me that Mr. MacDonald was suggesting that he owned the ROUGH CUT name or that WGBH did not own the title. As far as I am aware, Mr. MacDonald raised this in 2018, and only after he was replaced as the host. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. This Supplemental Declaration was executed this ?ay of June 2018 in Boston, Massachusetts. Wren/l Laurie Donnelly 7 Case Document 29-2 Filed 06/15/18 Page 8 of 35 EXHIBIT 17 5:1312015 Case 1: a) American Public ROUGH CUT WITH FINE WOODWORKING Season 8 Preview season eight with new host Torn McLaughlin How To\Home Improvement To\Home Improvement) TV-G The Emmy-nominated series ROUGH CUT returns for season eight with new host Tom McLaughlin, who has been making and designing commissioned, custom furniture since 1990. In each half-hour episode, 1,2 6/13/2018 Case design inspiration is turned into easy-to-follow projects for woodworkers at every skill level. Torn teaches the latest wood crafting techniques, as well as tips and instruction for how to create projects that can be passed down for generations. Projects this season include: a craftsman-style dining chair in white oak; a Shaker-style hall table in cherry; a hanging bow front cabinet in American ash; a tilt-top round breakfast table in curly maple; a live?edge coffee table made from New England walnut; and much more. Distributor NOLA APT Program Service Presenter Episodes/Length Rights Period TV Listings 0 Broadcast Rights 0 Episodes Contacts Flags American Public Television RCFW Exchange WGBH 13/30 04/07/2018 - 04/06/2021 the-Hanh?nlinn nrn/nafalnn/Dnl 2/2 Case Document 29-2 Filed 06/15/18 Page 11 of 35 EXHIBIT 18 Case Document 29-2 Filed 06/15/18 Page 12 of 35 Frances O'Keeffe Subject: FW: URGENT: Please correct listing for Rough Cut with Fine Woodworking From: Christine Phillips Date: June 12, 2018 at 8:24:28 AM EDT To: Laurie Donnelly Date: Tuesday, May 1, 2018 at 4:35 PM To: Christine Phillips Subject: Re: URGENT: Please correct listing for Rough Cut with Fine Woodworking Christine: Case Document 29-2 Filed 06/15/18 Page 17 of 35 Thanks for getting back to you and for verifying that the you have the correct host, Tom McLaughin and the correct photos in the data base for Rough cut with Fine woodworking. We saw the incorrect listing information in a DIRECT TV listing. Can you please con?rm that DIRECT TV has the correct photo and host info for season 8? From: Christine Phillips Date: Wednesday, April 25, 2018 at 9:29 AM To: Laurie Donnelly Date: Tuesday, March 27, 2018 at 9:00 AM To: Mark Miller Cc: Dylan Leavitt Cc: Dylan Leavitt Subject: RE: TV Guide Hi, Anne Thank you for the updated info. Page 21 of 35 I have passed this along to our Logos/Images team they will be making these revisions shortly. From: Anne Adams [mailtmanne adams@wgbh.org] Sent: Monday, March 26, 2018 5:59 PM To: Mark Miller Cc: Dylan Leavitt Subject: TV Guide Mark, I am the producer of Rough Cut with Fine Woodworking, on public television. This season we have a new host and a new name for the show. I saw your recent Case Document 29-2 Filed 06/15/18 Page 22 of 35 And though you have the episode descriptions correct, we should not be using Tommy Mac?s photo or likeness in association with the show he is no longer the host. And the title of the show is now Rough Cut with Fine Woodworking. Attached please ?nd the new logo as well as a link to photos of our host. Please update your materials ASAP to include the correct host and title. Thank you. Anne Adams Senior Program Producer/Rough Cut with Fine Woodworking WGBH Educational Foundation One Guest Street Boston, MA 02135 617-300-3 838 This email and any attachments may contain confidential and privileged material for the Sole use of the intended recipient Any review. copying. or distribution of this email (or any attachments) by others is prohibited If you are not the intended recipient, please contact the sender immediately and permanently delete this email and any attachments No employee or agent of TiVo Inc is authorized to conclude any binding agreement on behalf of TWO inc by email Binding agreements with TiVo may only be made by a signed written agreement 5,14,2018 Case Document Raobnnl?ailed 06/15/18 Page 23 of 35 IvvommHome I Signm I WHAT MYSHOWS GUIDF I .. "f Rough Cut With Fine Woodworking ill Afurniture maker gains inspiration for projects during visits to historic landmarks, then demonstrates how to create future family heirlooms. 1.1 TV-PG Arr. and rafts Home Impiovemeni Upcoming Cast/Crew lfYou Like 11. r' f; I f" tilt-t - Hana-min?: Tom McLaughlin Host View lessA This show is currently unavailable to watch online -n 7 mm a. pm All le?lhl" RerIm-d In" ll lem min; Hnnlino liun Watch Onllne Case All Episodes .54 ?Renl lammalmn (.hau 54 L2 'P'Ine Chest 811 11.1.9.?er Bux' 54 E-1 'Glass Desk Lamp' 84 E5 ?Fudural Hall Table' 54 E6 'R?ice Paper Divider 54 H'Book Stand' .84 'Bird House' 54 E9 'Baseball Bat Bed' 54 E10 'Charrs 2' 54 Ell'PulJ Table? 554 E12 Scraps? 54 {13 ?Garden Bench' Document 29-2 Filed 06/15/18 Page 24 of 35 Ha ml! l. :odwol lung I I anw :c \I1l 1; Ml mow B0) llosmn .Imm hi1 Immune; 01 Lln- Huxrun wh? n?m'imp a memory hm I More opllons Upcoming 35.1ff'rew Tn? r) Guest ?liar Sea-Jon: Case Document 29-2 Filed 06/15/18 Page 25 of 35 Watch Online 53 1 'Episodc801? 58 E2 'Episode 802? SB E3 'Episode 803' SB Eb 'Episode 804? SB [6 ?Episode 805' 58 7 'Fpisode 806' SB E8 'Episode 807' 58 E9?Episode 808' 58 E10 'Episode 809' 58 E11 'Episode 810? 58 ?Episode 811' 58 E13 'Episode 812' 53 E14 'Episode 313' Rougn Cut With I'm) Woodworking 58 E5'Epl50d0804' A lake on :1 design of Adllondm lawn thanMore opllona Upcoming ash-Cram Case Document 29-2 Filed 06/15/18 Page 26 of 35 EXHIBIT 20 Postrepl? Page 1 of 1 [6 posts] Print view Previous topic Next topic Author Message 3 Star Hotel TOMMY MAC Posted: Thu Dec 17, 09 8:21 am Bermuda 4 hi every know its been forever since we posted a has been a crazy year all the way from bobvila.t chisel and now MLW have $361 been all over trying to rebuild and rebrand what i think MLW is the result from almost 3 years of grinding love this forum and the friends i 33:13:): ng?lun 13. have new tool box video is doing well.#2 the step stool will be 45tarHote. [305152957 out in 2 belore april..and we are about to venture into Bermuda Canto? another way of showing my shops day to day grind and antics have installed 4 cameras around the shop with mics. josh and david are working $373 out all the logistics for the web and our site so we can provide a daily live feedl!with a mulit screenfcamview, with a real time new chat dedicated to the feed which will make this totally interactive with our members either with me, eli.al or special guests or among are working on a schedule for daily airing times and weekly with live demonstrations directly from the ..thls is going to be a ton of fun..just like the old $457 "rough out show" but live!! this is going to be available through the forum to signed up members only..so all you "lurkers" will have to sign in to access this all you gotta do is register for the hope to do weekly give aways for the question "or answer" of the i look forward to getting this off the ground and seeing you in my 4 Star Hotel Bermuda Case Document 29-2 Filed 06/15/18 Page 27 of 35 Case Document 29-2 Filed 06/15/18 Page 28 of 35 EXHIBIT 21 Case Document 29-2 Filed 06/15/18 Page 29 of 35 Home - Tommy Mac Page 1 of 9 .9 regisler IE login MENU ,3 TOMMY MFIC All Categories All Tags Submit 111M. HEY, WELCOME TO MY This is the home of all things Tommy Mac! We have classes at Tommy's shop, community discussions, galleries of images and much more. Have a look around and leave us a note! INSTRUCTIONAL SERIES FOR MEMBERS Here is a sneak peak at some video shot in the old shop. It is for a new video subscription series l'm putting together. I had tons of requests for more instructional videos and felt it was time to take a deep dive. Thanks for all of your comments and support! Have a look and let me know what you think! More info to come as we roll this out. 6/13/2018 Case Document 29-2 Filed 06/15/18 Page 30 of 35 611312018 Step by Step - Tommy Mac .9 register It] login MENU I TOMMY All Categories All Tags Submit 2 STEP list? STEP Mortise and Tenon - Cuttin the Tenon The mortise and tenon is an essential joint in woodworking. It enjoys numerous variations and can be completed using a variety of techniques. The application of the mortise and tenon READ MORE August 7, 2014 I TommyMac I Step-by-Step I No Comments 1M Case Document 29-2 Filed 06/15/18 Page 31 of 35 $132018 Projects - Tommy Mac i? register It] login 0 TOMMY MRC MENUE All Categories All Tags Submit PROJECTS . be. Basic Table Construction 115 Case Document 29-2 Filed 06/15/18 Page 32 of 35 611312018 Woodworking 101 -Tommy Mac i? register +3 Iogin TOM MY MHC 5 All Categories Tags Submit 101 101 Chisel Sharpening February 9, 2016 I Bradley Maravalli 101 I No Comments 21 113 Case Document 29-2 Filed 06/15/18 Page 33 of 35 611312013 Home Improvement - Tommy Mac 1? register In login TOMMY MQC MENU 5 All Categories All Tags 7 submit I improvement It's a little know fact that Tommy was ?rst a contractor before he became a ?ne woodworker and TV personality. He has built and remodeled many homes including his own. In this section you can follow along as Tommy does real world remodels, additions. repairs and new construction. It?s entertaining and wicked informative! 1/8 Case Document 29-2 Filed 06/15/18 Page 34 of 35 a TOMMY MAC HOWZ TOMMYNOW FORU ABOARD WITH A HAND PLANE The Anatomy of a Hand Plane By On December .T 2016 In Case Document 29-2 Filed 06/15/18 Page 35 of 35 TOM MY MHC HOW2 TOMMY wow FORI. NATURAL ON THE ANATOMY OF A HAND PLANE Flattening a Board with a Hand Piane d_'r On December? 2016 . In