Plaintiff Taea Thale, a professional photographer, brought suit against Apple, Inc., for copyright infringement, alleging Apple’s unauthorized use of one of her copyrighted photographs in a commercial. According to the complaint, Thale took a photograph of the band “She & Him,” registered the photo with the Copyright Office, and licensed it for limited use in magazines or on posters to promote appearances of the band. Without Thale’s knowledge or consent, Apple incorporated the photo into a national television commercial for the iPhone 3GS that aired from April 5 through April 18, 2010. The photo was on-screen for no more than five seconds of the 30-second commercial, which was one of nine commercials for the iPhone that aired during the same time period.
Thale sought to recover Apple’s profits attributable to the infringement under Section 504(b) of the Copyright Act. Apple moved for partial summary judgment dismissing Thale’s indirect profits claim, asserting that Thale could not establish a causal nexus between Apple’s alleged infringement and its profits from sales of the iPhone.
The district court noted that, in the Ninth Circuit, a copyright plaintiff who seeks indirect profits under Section 504(b) of the Copyright Act bears the burden of proffering “some evidence” to establish a triable issue of fact as to whether the infringement “at least partially caused the profits that the infringer generated as the result of the infringement.” The district court found that Thale’s evidence — that her photograph was the “centerpiece” of the commercial, that it was selected “precisely” because it promoted Apple’s intended image, and that it was “favorably received” — was not material to whether Apple’s use of the image actually influenced consumers and caused Apple’s revenues. Because Thale failed to show nonspeculative evidence that Apple’s sales resulted from use of her photo, the court granted Apple’s motion for partial summary judgment and dismissed Thale’s indirect damages claim.