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Establishing Copyright Damages When Party Moves for Summary Judgment
Section 504(b) of the Copyright Act allows a copyright owner to obtain both the owner's actual damages as well as an infringer's profits attributable to the infringed work that weren't included in the actual damages award. What are the burdens of proof when a copyright infringement plaintiff seeks this recovery after a pre-trial summary judgment motion has been filed? How does an expert's report work into this? These issues were recently examined in a lengthy opinion from the U.S. Court of Appeals for the Fourth Circuit. Dash v. Mayweather, 12-1899. This article primarily discusses the court's analysis of the expert witness report.
The case involved a copyright infringement suit by musician Anthony Lawrence Dash that alleged his “Tony Gunz Beat (TGB)” track was used without his permission as the basis for entry music for boxer Floyd Mayweather Jr. at two World Wrestling Entertainment (WWE) events ' the pay-per-view Wrestlemania XXIV and on the weekly TV show RAW. The song that was broadcast was titled “Yep,” which added lyrics written by Mayweather and Cory Harris to Dash's beat track.
After Dash sued Mayweather and WWE in the U.S. District Court for the District of South Carolina, the parties stipulated that Dash had “adduced no evidence that the playing of the 'Yep' song at Wrestlemania XXIV or the Aug. 24, 2009 RAW show increased any of the WWE revenue streams ' beyond that which would have existed without the song 'Yep.'” In addition, Dash and the defendants filed a joint motion requesting the district court to rule on his '504 damages claim prior to a liability determination.
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