Viktor v. Lamar

District court denies prediscovery motion for partial summary judgment brought by Kendrick Lamar, SZA and others seeking to bar plaintiff whose paintings were allegedly infringed in music video for song “All the Stars” from recovering profits generated by song and purported reputational damages.

Plaintiff Lina Iris Viktor, a visual artist, brought copyright infringement claims against hip-hop artists Kendrick Lamar, SZA, UMG Recordings, Interscope Records and others alleging that they improperly used her paintings in the music video for the song “All the Stars,” which was featured on the soundtrack album for the blockbuster film “Black Panther.” Plaintiff alleged that defendants displayed her paintings for 19 seconds in the music video without her authorization. Because plaintiff had not registered her works prior to the alleged infringement and was thus ineligible for statutory damages, she sought actual damages and indirect profits under the Copyright Act, including a portion of the profits that defendants received from the song’s recording and the album on which it was featured on as well as damages to her reputation. Prior to the close of fact discovery, defendants moved for partial summary judgment, seeking to bar plaintiff from recovering her requested damages, but the district court denied the motion without prejudice to renewal.

The court noted that pursuant to Section 504(b) of the Copyright Act, a copyright owner may recover “any profits of the infringer that are attributable to the infringement,” and that the burden rests with the copyright owner to present proof of the alleged infringer’s gross revenue and to demonstrate a causal relationship between the alleged infringement and such revenue. Defendants argued that plaintiff could not possibly present “non-speculative evidence” showing a causal nexus between the alleged infringement of her paintings in the music video and defendants’ profits from the recording of “All the Stars.” Defendants primarily cited two cases in support of their position: a 2002 Ninth Circuit decision in Mackie v. Reiser, and an unreported 2013 decision from the Southern District of New York in Complex Systems, Inc. v. ABN Ambro Bank N.V. The court found both cases distinguishable.

As the court noted, in Mackie, the Ninth Circuit upheld a grant of partial summary judgment in favor of a defendant symphony that had used photos of plaintiff’s public artwork in a brochure designed to sell concert tickets. The Ninth Circuit found that plaintiff’s evidence was too speculative and attenuated to support a causal connection between the infringing photos contained on one page of the brochure and any profits from symphony ticket sales. Similarly, in Complex Systems, the district court granted a motion in limine precluding evidence of indirect damages at trial, finding that plaintiff in that case had failed to establish a causal relationship between the infringing use of its software by the defendants and defendants’ revenues. The decisions in Mackie and Complex Systems, the court emphasized, were made “after close review of a fully developed record,” including extensive discovery and expert testimony, in sharp contrast to plaintiff’s case against defendants, which was “early in the discovery process.” Accordingly, although the court acknowledged that plaintiff may ultimately be unable to show the necessary causal connection, it declined to bar any element of damages before the development of a complete factual record.

The court similarly declined to bar plaintiff from seeking damages to her reputation and the reputation of her works. Although acknowledging that the Copyright Act “does not by its explicit terms provide for reputational damages,” the court nonetheless stated that “a full record may crystallize the precise nature of the harm, if any, that Viktor claims an ability to establish factually.”

Summary prepared by Frank D’Angelo and Kyle Petersen