Cameo Clips

RIGHT OF PUBLICITY/EXPERT WITNESSES

The U.S. Court of Appeals for the First Circuit decided that a right-of-publicity plaintiff's damages under Florida law should be based on the defendant's usage, rather than sales, data. Ji v. Bose Corp., 09-2341. Model Ting Ji sued in Florida federal court over use, on Bose home-entertainment-system packaging and promotion, of a photo in which she appeared. After Bose had the case transferred to the District of Massachusetts, where the company is based, the district court dismissed Ji's false endorsement claim under the Lanham Act. Following a trial, the jury found Bose violated Ji's right of publicity and privacy rights, but awarded her $10,000, rather then the $2 million she sought.

Florida Statutes '540.08(2) states that a prevailing right-of-publicity plaintiff may “recover damages for any loss of injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages.” On Ji's appeal, the First Circuit observed that the Florida statute “does not define a reasonable royalty, or suggest what data is necessary to calculate what one might be in any particular set of facts. No opinion of the Florida Supreme Court, or of Florida's lower appellate courts, does either.”

The First Circuit went on to note that “the district court ordered Bose to tell Ji the 'number of unit boxes on which her image appeared.' Bose thereafter told Ji, via a supplemental interrogatory response, that Ji's image appeared on approximately 206,000 units of the 321 [home entertainment] System. Based on that data point, and record evidence that the 321 System sold for $999 per unit, Ji's expert witness, Richard Wolfe, an attorney specializing in entertainment law, was able to extrapolate that Bose's gross revenues from the 321 System were as high as about $206 million. Applying a rate of between a half percent and [1%] of that figure, Wolfe testified at trial that in his opinion a reasonable 'usage fee' (which he equated with a 'royalty') would be between $1 million and $2 million. At closing, Ji's counsel, specifically referencing Wolfe's testimony, argued that the jury should award Ji a $2 million fee based on a one-percent rate.”

The federal appeals court continued: “Ji argues that although Wolfe was able to extrapolate maximum potential revenues based on the number of units Bose packaged, he could not determine actual revenues without knowing how many of those units Bose sold. This is, of course, true. But this could not have prejudiced Ji. The number of units Bose sold would have to be equal to or, more likely, less than the number of units Bose packaged.”

The U.S. District Court for the Northern District of Georgia, Atlanta Division, excluded both plaintiff's and defendant's experts' reports in a suit over the unauthorized publication in Hustler Magazine of early nude photographs of professional wrestler Nancy Benoit, who was murdered by her husband. Toffoloni v. LFP Publishing Group LLC, 1:08-CV-421-TWT. In the suit by Benoit's mother, Maureen Toffoloni, the U.S. Court of Appeals for the Eleventh Circuit had previously found Hustler wasn't entitled to protection under the newsworthiness exception of the Georgia right of publicity law. Toffoloni v. LFP Publishing Group LLC, 572 F.3d 1201 (11th Cir. 2009). On remand, District Judge Thomas W. Thrash Jr. excluded a report by Toffoloni's expert Dr. Usha Nair-Reichert ' an economics professor at the Georgia Institute of Technology who opined on Toffoloni's damages ' and a report by LFP's expert Dr. Greg Lisby ' a professor at Georgia State University ' ruling that LFP reasonably believed the Benoit photos were newsworthy when they were published.

Nair-Reichert's report calculated LFP's short-term and long-term financial gains, as well losses to Benoit's estate. But Judge Thrash observed: “With respect to LFP's short-term financial gains, Dr. Nair-Reichert did not adequately explain why she decided that the Benoit photographs were worth four to five times the [$45,000 paid for photos of prostitute Wendy Cortez, who had a notorious liaison with Louisiana U.S. Senator David Vitter]. She said that she used Google searches to determine the relative popularity of the two women but did not show how this seemingly imprecise method is objectively reliable. With respect to LFP's long-term gains, Dr. Nair-Reichert did not adequately describe why she concluded that the Benoit feature accounted for 2% of Hustler's revenue over a nine-month period based on how much space the headline [reference to the photos] occupied on the March 2008 cover. ' Finally, with respect to the estate's losses, Dr. Nair-Reichert relied primarily on unverified figures from the [World Wrestling Entertainment's] [W]eb site [of the total number of professional wrestling DVDs sold in 2009] and extrapolated from those figures a total sales figure for a hypothetical tribute DVD [that Benoit's estate might have compiled].” Judge Thrash added: “Notably, Dr. Nair-Reichert has no experience or training in the fields of intellectual property licensing, professional wrestling, magazine publishing or video production and sales. Her calculations are, therefore, entirely subjective and not based upon expertise that will assist the jury in calculating LFP's unjust enrichment.”

The district judge then excluded LFP's Lisby report for use in showing LFP shouldn't be liable for punitive damages. According to the judge: “[T]he question for the jury is whether LFP subjectively believed at the time of its decision that the photographs were newsworthy. Expert testimony offering a legal conclusion based on research completed after the photographs were published will not help a jury decide what LFP believed at that time.”

Judge Thrash then granted summary judgment to Toffoloni on the issue of LFP's liability, while denying LFP's motion for summary judgment on the punitive damages issue.

RIGHT OF PUBLICITY/EXPERT WITNESSES

The U.S. Court of Appeals for the First Circuit decided that a right-of-publicity plaintiff's damages under Florida law should be based on the defendant's usage, rather than sales, data. Ji v. Bose Corp., 09-2341. Model Ting Ji sued in Florida federal court over use, on Bose home-entertainment-system packaging and promotion, of a photo in which she appeared. After Bose had the case transferred to the District of Massachusetts, where the company is based, the district court dismissed Ji's false endorsement claim under the Lanham Act. Following a trial, the jury found Bose violated Ji's right of publicity and privacy rights, but awarded her $10,000, rather then the $2 million she sought.

Florida Statutes '540.08(2) states that a prevailing right-of-publicity plaintiff may “recover damages for any loss of injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages.” On Ji's appeal, the First Circuit observed that the Florida statute “does not define a reasonable royalty, or suggest what data is necessary to calculate what one might be in any particular set of facts. No opinion of the Florida Supreme Court, or of Florida's lower appellate courts, does either.”

The First Circuit went on to note that “the district court ordered Bose to tell Ji the 'number of unit boxes on which her image appeared.' Bose thereafter told Ji, via a supplemental interrogatory response, that Ji's image appeared on approximately 206,000 units of the 321 [home entertainment] System. Based on that data point, and record evidence that the 321 System sold for $999 per unit, Ji's expert witness, Richard Wolfe, an attorney specializing in entertainment law, was able to extrapolate that Bose's gross revenues from the 321 System were as high as about $206 million. Applying a rate of between a half percent and [1%] of that figure, Wolfe testified at trial that in his opinion a reasonable 'usage fee' (which he equated with a 'royalty') would be between $1 million and $2 million. At closing, Ji's counsel, specifically referencing Wolfe's testimony, argued that the jury should award Ji a $2 million fee based on a one-percent rate.”

The federal appeals court continued: “Ji argues that although Wolfe was able to extrapolate maximum potential revenues based on the number of units Bose packaged, he could not determine actual revenues without knowing how many of those units Bose sold. This is, of course, true. But this could not have prejudiced Ji. The number of units Bose sold would have to be equal to or, more likely, less than the number of units Bose packaged.”

The U.S. District Court for the Northern District of Georgia, Atlanta Division, excluded both plaintiff's and defendant's experts' reports in a suit over the unauthorized publication in Hustler Magazine of early nude photographs of professional wrestler Nancy Benoit, who was murdered by her husband. Toffoloni v. LFP Publishing Group LLC, 1:08-CV-421-TWT. In the suit by Benoit's mother, Maureen Toffoloni, the U.S. Court of Appeals for the Eleventh Circuit had previously found Hustler wasn't entitled to protection under the newsworthiness exception of the Georgia right of publicity law. Toffoloni v. LFP Publishing Group LLC , 572 F.3d 1201 (11th Cir. 2009). On remand, District Judge Thomas W. Thrash Jr. excluded a report by Toffoloni's expert Dr. Usha Nair-Reichert ' an economics professor at the Georgia Institute of Technology who opined on Toffoloni's damages ' and a report by LFP's expert Dr. Greg Lisby ' a professor at Georgia State University ' ruling that LFP reasonably believed the Benoit photos were newsworthy when they were published.

Nair-Reichert's report calculated LFP's short-term and long-term financial gains, as well losses to Benoit's estate. But Judge Thrash observed: “With respect to LFP's short-term financial gains, Dr. Nair-Reichert did not adequately explain why she decided that the Benoit photographs were worth four to five times the [$45,000 paid for photos of prostitute Wendy Cortez, who had a notorious liaison with Louisiana U.S. Senator David Vitter]. She said that she used Google searches to determine the relative popularity of the two women but did not show how this seemingly imprecise method is objectively reliable. With respect to LFP's long-term gains, Dr. Nair-Reichert did not adequately describe why she concluded that the Benoit feature accounted for 2% of Hustler's revenue over a nine-month period based on how much space the headline [reference to the photos] occupied on the March 2008 cover. ' Finally, with respect to the estate's losses, Dr. Nair-Reichert relied primarily on unverified figures from the [World Wrestling Entertainment's] [W]eb site [of the total number of professional wrestling DVDs sold in 2009] and extrapolated from those figures a total sales figure for a hypothetical tribute DVD [that Benoit's estate might have compiled].” Judge Thrash added: “Notably, Dr. Nair-Reichert has no experience or training in the fields of intellectual property licensing, professional wrestling, magazine publishing or video production and sales. Her calculations are, therefore, entirely subjective and not based upon expertise that will assist the jury in calculating LFP's unjust enrichment.”

The district judge then excluded LFP's Lisby report for use in showing LFP shouldn't be liable for punitive damages. According to the judge: “[T]he question for the jury is whether LFP subjectively believed at the time of its decision that the photographs were newsworthy. Expert testimony offering a legal conclusion based on research completed after the photographs were published will not help a jury decide what LFP believed at that time.”

Judge Thrash then granted summary judgment to Toffoloni on the issue of LFP's liability, while denying LFP's motion for summary judgment on the punitive damages issue.