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In copyright infringement action arising from unauthorized use of musical work during televised wrestling events, Fourth Circuit affirms grant of summary judgment on issue of actual damages and defendants’ profits, because plaintiff offered no evidence that his work had any market value or that its use enhanced defendants’ revenues.In copyright infringement action arising from unauthorized use of musical work during televised wrestling events, Fourth Circuit affirms grant of summary judgment on issue of actual damages and defendants’ profits, because plaintiff offered no evidence that his work had any market value or that its use enhanced defendants’ revenues.
Plaintiff Anthony Lawrence Dash brought suit against defendants, alleging that the song “Yep,” played during defendant Floyd Mayweather, Jr.’s entrance at two of defendant World Wrestling Entertainment’s events infringed a copyright that he holds in a musical work named “Tony Gunz Beat.” Following discovery, the district court bifurcated the issues of liability and damages. In addressing damages first, the district court concluded that the opinion of Dash’s expert could not support an award of actual damages, nor had Dash presented evidence entitling him to disgorgement of defendants’ profits, because he could not demonstrate a causal link between the alleged infringement and any of defendants’ revenue streams. Read our summary of the district court’s decision here.
On appeal, the Fourth Circuit affirmed the district court’s determinations as to both actual damages and defendants’ profits. At the outset, the court considered plaintiffs’ entitlement to actual damages under Section 504(b) of the Copyright Act. The court explained that, in order to survive a motion for summary judgment on a claim for actual damages, a plaintiff must offer non-speculative evidence that the infringed work had some market value, and that he suffered actual damage because of the infringer’s failure to pay a licensing fee. The court found that Dash’s expert’s estimation of his lost licensing fee was too speculative to support a finding of actual damages. The court noted that plaintiff’s expert report failed to expressly conclude that the song actually had any market value, and instead opined only as to the song’s “maximal” value. The omission of a clear statement of value suggested that plaintiff’s expert could not conclude that plaintiff would have been paid any licensing fee for defendants’ use of the song. The court further noted that even if plaintiff’s expert had concluded that Dash’s music had value, summary judgment would still be appropriate because the expert relied on evidence of fees paid to other artists who were far more well-known than Dash, without explaining how the disparity in the artists’ popularity affected his analysis. Moreover, the court stated that, although the prior sale or licensing of copyrighted work might demonstrate the existence of actual damages, Dash provided no evidence that he had ever sold or licensed any of his musical works.
The court also concluded that Dash had failed to demonstrate entitlement to disgorgement of defendants’ profits under Section 504(b). In light of Dash’s stipulation that the playing of “Yep” did not increase the revenues from either wrestling event, the district court found that plaintiff could not demonstrate a “causal link” between the alleged infringement and the enhancement of any revenue stream. Many of the revenue streams claimed by Dash involved revenues that customers and businesses had paid to defendants, or agreed to pay to defendants, before “Yep” was played at the wrestling events. The court also stated that the notion that a consumer would purchase a home video of the wrestling events simply to hear “Yep” played again “defies credulity.”
For more information, please contact Jonathan Zavin, W. Allan Edmiston, David Grossman, Tal Dickstein or Meg Charendoff.
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