Cameo Clips

COPYRIGHT DAMAGES/CLAIM PRECLUSION

The U.S. Court of Appeals for the Fourth Circuit decided that claim preclusion barred a plaintiff from being awarded actual damages from product licensees of the Baltimore Ravens ' after a jury in an earlier suit by the plaintiff against the football team found that the Ravens infringed on the plaintiff's logo but that an award of profits attributable to the infringement wasn't appropriate. Bouchat v. The Bon-Ton Department Stores, 03-2173. The Fourth Circuit explained: 'That [Frederick] Bouchat did not seek actual damages in Bouchat I but now seeks such damages from the licensees does not alter our conclusion that the claims in Bouchat's cases are identical. The relief Bouchat seeks for the licensees' commercial use of the infringing logo is 'woven together,' ' with the relief he sought against the Bouchat I defendants.' The appeals court added: '[E]valuation of infringement profits must take into account the nature of any actual damages. This link between the remedies Bouchat has sought reinforces our identification of a 'common nucleus of operative facts' in these cases. ' Any plaintiff who sues joint tortfeasors separately bears the risk that an adverse determination in the first action will trigger preclusion doctrines in a later action. Bouchat bore this risk from the time he filed his first action, suing only the Ravens and NFLP [National Football League Properties]. He made this choice, and we have no reason to insulate him from the unfavorable consequences.'

The appeals court further held that Bouchat wasn't entitled to statutory copyright damages against the licensees because he hadn't registered his logo for copyright until one month after the NFLP's first infringing use. The copyright provision requiring pre-infringement registration for an award of statutory damages, 17 U.S.C. 504(c)(1), 'subjects a licensor-licensee pair to the same tracing rule that would apply to either one as an individually liable infringer. Here, then, we must trace the licensee's post-registration infringing conduct back to NFLP's pre-registration conduct and thereby deny statutory damages to Bouchat,' the appeals court concluded.

The Court of Appeals of Michigan upheld a breach-of-contract claim by musician Ted Nugent over cancellation of a concert following purported racially insensitive comments by the artist. But the appeals court also upheld a decrease in the damages award and a grant of summary judgment for the concert promoter on Nugent's libel and slander claim. Nugent v. Muskegon Summer Celebration Inc. (MSC), 266445. The appeals court explained in its unpublished opinion: 'A few weeks before the scheduled performance, Mr. Nugent participated in a radio program in Denver, CO, and some of the defendants' agents and some in the media opined that Mr. Nugent used racial slurs in reference to African-Americans and Asians.' In announcing cancellation of Nugent's concert appearance, MSC's chairperson stated: 'Any use of potentially offensive racial terms such as those attributed recently to Ted Nugent do not reflect the spirit of Muskegon nor the Summer Celebration.'

The appeals court noted on Nugent's libel and slander claim: 'Had plaintiffs presented statements in which defendants called Mr. Nugent a racist, then this matter would present a different case. However, as it stands, based on the record before us, the only allegation regarding defamation concerns defendants' comment about Mr. Nugent's comments.'

A jury awarded Nugent $80,000 for contract breach. The trial court reduced the amount by $20,000. Affirming the reduction, the appeals court emphasized: 'Trial testimony does not support plaintiffs' argument that Mr. Nugent must pay 25% of the judgment to his agent and manager. Rather, the testimony reveals that Mr. Nugent would have paid his agent and manager if he had 'performed' at the festival, but obviously Mr. Nugent did not give a performance. Therefore, had the contract been fulfilled, the net to Mr. Nugent would have been $60,000, not $80,000. We are not persuaded by plaintiffs' argument that Mr. Nugent's agent and manager must be paid on the judgment because they are compensated for any 'music-related activity.”

COPYRIGHT DAMAGES/CLAIM PRECLUSION

The U.S. Court of Appeals for the Fourth Circuit decided that claim preclusion barred a plaintiff from being awarded actual damages from product licensees of the Baltimore Ravens ' after a jury in an earlier suit by the plaintiff against the football team found that the Ravens infringed on the plaintiff's logo but that an award of profits attributable to the infringement wasn't appropriate. Bouchat v. The Bon-Ton Department Stores, 03-2173. The Fourth Circuit explained: 'That [Frederick] Bouchat did not seek actual damages in Bouchat I but now seeks such damages from the licensees does not alter our conclusion that the claims in Bouchat's cases are identical. The relief Bouchat seeks for the licensees' commercial use of the infringing logo is 'woven together,' ' with the relief he sought against the Bouchat I defendants.' The appeals court added: '[E]valuation of infringement profits must take into account the nature of any actual damages. This link between the remedies Bouchat has sought reinforces our identification of a 'common nucleus of operative facts' in these cases. ' Any plaintiff who sues joint tortfeasors separately bears the risk that an adverse determination in the first action will trigger preclusion doctrines in a later action. Bouchat bore this risk from the time he filed his first action, suing only the Ravens and NFLP [National Football League Properties]. He made this choice, and we have no reason to insulate him from the unfavorable consequences.'

The appeals court further held that Bouchat wasn't entitled to statutory copyright damages against the licensees because he hadn't registered his logo for copyright until one month after the NFLP's first infringing use. The copyright provision requiring pre-infringement registration for an award of statutory damages, 17 U.S.C. 504(c)(1), 'subjects a licensor-licensee pair to the same tracing rule that would apply to either one as an individually liable infringer. Here, then, we must trace the licensee's post-registration infringing conduct back to NFLP's pre-registration conduct and thereby deny statutory damages to Bouchat,' the appeals court concluded.

The Court of Appeals of Michigan upheld a breach-of-contract claim by musician Ted Nugent over cancellation of a concert following purported racially insensitive comments by the artist. But the appeals court also upheld a decrease in the damages award and a grant of summary judgment for the concert promoter on Nugent's libel and slander claim. Nugent v. Muskegon Summer Celebration Inc. (MSC), 266445. The appeals court explained in its unpublished opinion: 'A few weeks before the scheduled performance, Mr. Nugent participated in a radio program in Denver, CO, and some of the defendants' agents and some in the media opined that Mr. Nugent used racial slurs in reference to African-Americans and Asians.' In announcing cancellation of Nugent's concert appearance, MSC's chairperson stated: 'Any use of potentially offensive racial terms such as those attributed recently to Ted Nugent do not reflect the spirit of Muskegon nor the Summer Celebration.'

The appeals court noted on Nugent's libel and slander claim: 'Had plaintiffs presented statements in which defendants called Mr. Nugent a racist, then this matter would present a different case. However, as it stands, based on the record before us, the only allegation regarding defamation concerns defendants' comment about Mr. Nugent's comments.'

A jury awarded Nugent $80,000 for contract breach. The trial court reduced the amount by $20,000. Affirming the reduction, the appeals court emphasized: 'Trial testimony does not support plaintiffs' argument that Mr. Nugent must pay 25% of the judgment to his agent and manager. Rather, the testimony reveals that Mr. Nugent would have paid his agent and manager if he had 'performed' at the festival, but obviously Mr. Nugent did not give a performance. Therefore, had the contract been fulfilled, the net to Mr. Nugent would have been $60,000, not $80,000. We are not persuaded by plaintiffs' argument that Mr. Nugent's agent and manager must be paid on the judgment because they are compensated for any 'music-related activity.”