DANIEL POLIN, being duly sworn, deposes and says:

1. I am the founder and President of Great Projects Film Company ("Great Projects"), a New York-based, Emmy Award winning television company that specializes in the production of television documentaries. I do not know the plaintiff in this lawsuit, nor do I have any involvement in the conflict in Northern Ireland or any views concerning the role of the BBC in that conflict. I submit this affidavit as an expert witness at the request of the plaintiff’s counsel, for the purpose of advising the Court in connection with factual issues concerning the BBC’s use of the song, "Fenians" (the "Work"), in the BBC documentary at issue (the "Documentary").

2. I have been making television documentaries for 15 years. I am a graduate of Johns Hopkins University and now live in New York City with my wife and three children.

3. Great Projects was named for its multi-part PBS series about the history and future of American engineering, "Great Projects: The Building of America."  Since I founded it in 1988, my company has become recognized as one of the premiere production entities in the field of television documentaries. We received an Academy Award nomination for the PBS program, "An Essay on Matisse," an Emmy Award for PBS’s "George Marshall and the American Century," and an Emmy nomination for the highly acclaimed PBS program, "The Trial of Adolf Eichmann." In 1996, we produced "He Conquered Space," a biography of Wernher von Braun, for The Discovery Channel.

4. More recently, we produced PBS’s "Millennium Minutes," in association with the Princeton University-based Medici Foundation and the New Jersey Council for the Humanities, with underwriting from the National Endowment for the Humanities. President Clinton, announcing this project as part of the nation’s official celebration of the millennium, said, "We have to ensure that our unique vibrant cultural life flourishes in the new century and that our rich history is treasured and preserved. I am pleased that … a nationally televised series of Millennium Minutes [will] spotlight a thousand years of important people, events, and achievements." The first "Minutes" feature the voice-over talent of distinguished actors Betty Buckley, Roscoe Lee Browne, Paul Sorvino, Linda Lavin, Joe Morton and Bruce Davison. Lushly photographed and scored, they cover such diverse topics as the first novel, the Gutenberg Bible, Galileo’s scientific breakthroughs, the first women’s rights convention, Picasso’s Guernica and the election of Nelson Mandela as president of South Africa.

5. Our most recent broadcast was "Crucible of Empire:
The Spanish-American War," for PBS last year.  Narrated by Edward James Olmos,
it has won several awards.  In it, United States Senators Lautenberg, Simon, Leahy and Simpson read the voices of senators who debated the pros and cons of the United States
having colonies, in the 1901 debate over the Treaty of Paris.

6. Great Projects also produced the two-part "America's Political Parties," hosted by David Gergen and Ben Wattenberg and aired as part of PBS's coverage of the 1992 presidential election. Another of my productions was "Hollywood's Favorite Heavy: Businessmen on Prime Time TV," one of the most watched PBS documentary specials of 1987.

7. In addition to television documentaries, Great Projects produces educational films and videotapes. "Gilbane Gold: A Case Study in Engineering Ethics," sponsored by the National Society of Professional Engineers, is used by nearly every U.S. engineering school. The NSPE also asked Great Projects to produce "The Glass Ceiling," an educational video about women and their exclusion from the highest levels of engineering management. Other Great Projects videotapes include "Dialogues on Diversity," commissioned by the American Institute for Managing Diversity, which promotes upward mobility for minority and women employees, and "Paul H. Nitze: Reflections of a Cold Warrior," a video memoir of the distinguished diplomat which recently debuted at Mr. Nitze’s 90th birthday celebration.

8. My work has been honored by the American Film and Video Association, the New York International Festival of Film & TV, the Columbus International Film Festival, the National Educational Film and Video Festival, Houston Worldfest, CINE, and several European festivals. Underwriters have included Mobil Oil, AT&T, General Motors, the MacArthur Foundation, LTV Corporation, the National Endowment for the Humanities, the Corporation for Public Broadcasting, the National Science Foundation, the Alfred P. Sloan Foundation, the John M. Olin Foundation, and PBS.

9. The field of television documentary production, like so many other fields, has become international in scope. For example, American producers work on BBC programs in the United Kingdom, and BBC producers have worked on American projects. The PBS program, "Nova," was based on the BBC program, "Horizon." In addition, the BBC has been involved in one or more production deals with the American-based commercial company, The Discovery Channel. Great Projects itself has been involved with the BBC in the co-development of a film project. To the best of my knowledge, there are no editorial standards of television production that are unique to production work in either the United States or the United Kingdom.

10. I have viewed the portion of the Documentary at issue in this lawsuit, and I have read the portion of BBC producer Justin O’Brien’s affidavit in which he explains the BBC’s use of the plaintiff’s Work in the Documentary.

11. In my professional opinion, the approximately 50 seconds of the Work that was used by the BBC was far more than was needed for any transition or "clean fade" (to use Mr. O’Brien’s term) between program segments. Indeed, nearly 40 seconds of the Work was used simply as background music for an extended, separate segment of visual images such as maps, harbor views, and city scenes. This use of the Work in particular had no clear connection to the subsequent segment that covered the Radio Free Eireann show. Even with regard to the more than 10 seconds of the Work that accompanied some of the visual footage from the radio studio, it is not necessarily clear to the viewer that the Work actually is being broadcast by Radio Free Eireann. From the viewer’s perspective, this use possibly could be interpreted as nothing more than a continuation of the background track chosen by the BBC for the previous segment of maps and scenes.

12. In any event, most professional television producers would understand that 50 seconds of a recording artist's copyrighted work in a television documentary represents an extended exploitation of that work and would have three options to consider. First, the producer would have to consider obtaining a license for use of the work. A second option would be to commission the creation of original music in place of the work (or not to use music at all in the
sequence). The last and only other option would be to use the work without a license and run the risk of a claim of copyright infringement. In this case, it appears that the BBC may have chosen the latter of the three.

13. From the perspective of the Documentary’s viewers, however, who presumably would not have been aware of the plaintiff’s claim, the BBC’s use of the Work probably would have created the impression that the plaintiff had granted the BBC a license for the use.

14. As for the outcome of this litigation, I have no interest in it. I only hope that my expert opinions as expressed above will be of use to the Court as it reaches its own conclusions.

________________________________

DANIEL POLIN

Sworn to Before Me

This_____ Day of August

_____________________

Notary Public