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Establishing a causal nexus between defendants’ profits and defendants’ infringement of plaintiff’s photograph
The court denied defendants’ motion for judgment as a matter of law or a new trial on the issue of whether there was a causal nexus between defendants’ profits and the infringement of plaintiff’s copyrighted photograph.Section 504(b) of the Copyright Act provides that a copyright owner is entitled to recover any profits of the infringer that are attributable to the infringement. According to the court, a copyright owner need only present evidence that the infringement at least partially caused the profits that the infringer generated as a result of the infringement.
Although the Copyright Act does not distinguish between direct and indirect profits, the court noted that a causal nexus is typically more easily shown in a case involving direct profits rather than indirect profits. (Direct profits are those generated by selling an infringing product while indirect profits cases typically involve a defendant using a copyrighted work to sell another product.)
In this case, defendants used plaintiff’s photograph on their Sonoma Ridge wine label. Relying on Polar Bear Prods. v. Timex Corp., 384 F.3d 700 (9th Cir. 2004), the court held that since the photograph was an integral part of the product itself, rather than in an advertisement for the product, “this case is more akin to a direct profit case than an indirect profit case – and thus causation is more readily inferable.” Evidence of the prominence and centrality of the photo on the label – the label being a key aspect of the product's identify – “was sufficient to support a finding that the copyrighted photograph contributed to the sale of the wine.”
In addition, the court rejected defendants’ argument that there are many reasons why a consumer would have bought their wine that have nothing to do with the copyrighted photograph – for example, the price of the wine, the winery that produced the wine, the type of wine – and that this negates causation. The court explained that it was not plaintiff’s burden to show that the copyrighted photograph was the only reason why defendants' wine sold, nor was it his burden to show that the photograph was the main reason why the wine sold. Plaintiff need only have offered evidence that the photograph, featured prominently on the Sonoma Ridge wine label, may have actually influenced the purchasing decisions of consumers that bought the wine.