DAVIS, District Judge:
In this copyright infringement case, Anthony Lawrence Dash ("Dash") alleges that Floyd Mayweather, Jr. ("Mayweather"), Mayweather Promotions, Mayweather Promotions LLC, Philthy Rich Records, Inc., and World Wrestling Entertainment, Inc. ("WWE"), (collectively "Appellees"), violated his copyright by playing a variant of Dash's copyrighted music during Mayweather's entrance at two WWE events. Dash appeals from the district court's grant of summary judgment on the issue of his entitlement to damages under 17 U.S.C. § 504(b). For the reasons set forth below, we affirm.
In 2005, Dash composed an instrumental music track entitled "Tony Gunz Beat" ("TGB"). Dash has created a number of musical tracks; however, Dash has never received revenue from TGB or any other musical composition.
On February 7, 2008, Mayweather, a well-known boxer, entered into a contract with the WWE under which Mayweather agreed to promote and perform at a live WWE pay-per-view event: Wrestlemania XXIV. Tickets for Wrestlemania XXIV were sold out at the time the parties entered into the contract. The contract did not address the music to be played during Mayweather's appearance at the event, nor did the parties discuss Mayweather's entrance music at the time they entered into the contract.
At some point prior to Wrestlemania XXIV, the WWE communicated to Mayweather that it had selected a song by the musical artist 50 Cent to be played as Mayweather entered the ring at the event. However, the night before Wrestlemania XXIV, one of Mayweather's associates communicated to the WWE that Mayweather would be entering to a different song, entitled "Yep." Mayweather's manager provided the WWE with a CD containing the song and represented that Mayweather owned all rights to the song and was granting the WWE rights to use it in connection with his appearance. On March 30, 2008, Mayweather appeared at Wrestlemania XXIV, entering the arena to "Yep," which played for approximately three minutes. Dash claims that "Yep" combines lyrics with his now-copyrighted instrumental music, TGB.
On August 19, 2009, Mayweather entered into a second contract with the WWE in which he agreed to appear as a "Raw Guest Host" on the WWE's August 24, 2009 broadcast of its live weekly program, RAW. Like the Wrestlemania XXIV contract, this contract did not include any terms or conditions related to Mayweather's entrance music. On August 24, 2009,
Although Dash alleges that he created TGB in 2005, he did not file a copyright application for the beat with the United States Copyright Office until sometime in 2009. Dash then received a Certificate of Registration providing an effective date of registration for TGB of October 13, 2009. (J.A.33). Dash claims that Appellees' use of "Yep" in connection with both of Mayweather's WWE appearances infringed his copyright in TGB. Therefore, the claimed infringement is alleged to have occurred after Dash composed TGB, but before his copyright registration became effective.
For the purpose of summary judgment, the parties stipulated to the existence and amount of several revenue streams associated with Wrestlemania XXIV and the August 24, 2009, RAW broadcast.
Id.
Dash filed this copyright infringement action against Appellees on April 26, 2010. Dash initially sought preliminary and permanent injunctive relief, actual damages, profit damages from both Wrestlemania XXIV and the August 24, 2009, RAW broadcast, and statutory damages, all as set forth in 17 U.S.C. § 504. Dash later amended his Complaint to remove his request for statutory damages. As the district court observed, because Dash had not registered his copyright prior to the alleged infringement, statutory damages were not available to him. See Dash v. Mayweather, No. 3:10cv1036-JFA, 2012 WL 1658934, at *4 (D.S.C. May 11, 2012).
Following several discovery disputes between the parties and upon Appellees' motion, the district court bifurcated the proceedings with respect to liability and damages. The parties then filed a joint motion asking the district court to address Dash's entitlement to damages under § 504 before reaching the question of Appellees' liability for infringement. The district court granted this motion and ordered Appellees to submit partial summary judgment motions concerning Dash's entitlement to actual and profit damages under § 504(b), which Appellees later filed.
With respect to profit damages, the Einhorn Report reviewed the WWE's various profit streams attributable to Wrestlemania XXIV, calculated the value of Mayweather's appearance at that event relative to the net profits derived from the event, and then calculated the value of "Yep" to Mayweather's appearance based on the minutes of use relative to the length of Mayweather's performance. Id. The Einhorn Report concluded that $541,521 of the WWE's net profit from Wrestlemania XXIV was attributable to the WWE's infringing use of TGB. Id. at 1090. The Einhorn Report performed the same calculation with respect to the net profits that Mayweather derived directly from his appearance at Wrestlemania XXIV, concluding that $480,705 of such profits was attributable to the infringing use. Id. at 1091. The Einhorn Report did not conduct similar analyses concerning the August 24, 2009, RAW broadcast, concluding that there was not sufficient information to apportion a share of the Appellees' net profits to the infringing use of TGB. Id. at 1082. Therefore, based only on the calculations related to Wrestlemania XXIV, the Einhorn Report concluded that Dash should receive "no less than ... $1,019,226," over and above any actual damages received, "to disgorge" the profits Appellees derived from their alleged infringement of Dash's copyrighted music.
On May 9, 2012, the district court held a hearing on Appellees' motions for summary judgment. Following the hearing, the district court issued an order granting both motions, finding that Dash was not entitled to either actual or profit damages under § 504(b). Addressing profit damages first, the district court considered the issue of Dash's entitlement to a portion of the profits Appellees derived from Wrestlemania XXIV and from the August 24, 2009, RAW broadcast. With respect to these profit damages, the district court found that Dash had failed to satisfy his initial burden of proof under this Circuit's burden shifting approach to § 504(b). Specifically, in light of Dash's stipulation that the playing of "Yep" did not increase the revenues of either event beyond what such revenues would have otherwise been, the district court found that Dash had failed to present evidence demonstrating a causal link between the alleged infringement and the enhancement of any revenue stream claimed by Dash. In the absence of such evidence, the district court concluded that there was "no conceivable connection" between the alleged infringement and the
The district court also held that Dash was not entitled to recover any actual damages under § 504(b). In so holding, the district court found that Appellees had offered evidence that TGB did not have a market value, specifically, the lack of any reported income on Dash's tax returns and the absence of any other proof that he had previously sold his musical compositions. In response, Dash relied only on the Einhorn Report's calculation of TGB's "maximal value," which was based on the fees paid to other entertainers at Wrestlemania XXIV. The district court found that the Einhorn Report's estimation of TGB's market value amounted to nothing more than speculation, because the entertainers whose fees the Einhorn Report used as benchmarks were not similarly situated to Dash. As Dash had offered no other evidence to show that TGB had a market value, the district court held that Dash had failed to "offer[] sufficient, concrete evidence to indicate an actual value of the beat," and concluded that Appellees were therefore entitled to "summary judgment on the actual damages claim." Id. at *5. Because the district court found that Dash was not entitled to any profit or actual damages,
Dash moved for reconsideration of the district court's order, which motion the district court denied. Dash now appeals both the district court's original grant of summary judgment and its denial of reconsideration with respect to his entitlement to actual and profit damages under § 504(b).
We review a grant of summary judgment de novo, applying the same standard as the trial court and without deference to the trial court.
Any party may seek summary judgment, regardless of whether he may ultimately bear the burden of proof under the relevant statutory scheme — as a copyright infringer may under 17 U.S.C. § 504(b). Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 521-22 (4th Cir.2003). Irrespective of the burdens assigned by the applicable substantive law, Federal Rule of Civil Procedure 56 requires the movant to show that summary judgment is warranted. Fed.R.Civ.P. 56(a). We have observed that once the movant has satisfied this "initial burden" of demonstrating the absence of a genuine dispute as to any material fact, the nonmoving party must show that a genuine dispute does, in fact, exist. Bouchat, 346 F.3d at 522 (citing Matsushita Elec. Co., v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A party raises a genuine issue of material fact with respect to a claim only if a reasonable jury could return a verdict for that party on each element necessary to that claim. Banca Cremi, S.A. v. Alex. Brown & Sons, Inc., 132 F.3d 1017, 1027 (4th Cir.1997).
Although the court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th Cir.1997). Rather, "a party opposing a properly supported motion for summary judgment ... must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat, 346 F.3d at 522 (quoting Fed.R.Civ.P. 56(e) (2002) (amended 2010)). If the adverse party fails to provide evidence establishing that the factfinder could reasonably decide in his favor, then summary judgment shall be entered "regardless of `[a]ny proof or evidentiary requirements imposed by the substantive law.'" Id. (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). Guided by this standard of review, we analyze the merits of Dash's appeal.
Dash contends that the district court erred in granting summary judgment on his claims for actual and profit damages. Title 17, United States Code, Section 504(a) provides that "an infringer of copyright is liable for either (1) the copyright owner's actual damages and any additional profits of the infringer, as provided in subsection (b); or (2) statutory damages, as provided by subsection (c)."
17 U.S.C. § 504(b). Thus, the statute aims to both compensate for the injury resulting from infringement and to strip the infringer of the profits generated from infringement, in order to "make[] clear that there is no gain to be made from taking someone
Under the plain language of § 504, the copyright owner is first entitled to any actual damages resulting from infringement and then to certain profit damages, but only to the extent such profit damages are not contemplated in the calculation of the plaintiff's actual damages. See 17 U.S.C. § 504(b). Accordingly, we look first to the question of Dash's entitlement to actual damages under § 504(b) before considering whether he is entitled to a portion of the profits derived from Wrestlemania XXIV and the August 24, 2009, RAW broadcast.
The Copyright Act entitles a copyright owner to recover "the actual damages suffered by him or her as a result of the infringement...." 17 U.S.C. § 504(b). The statute does not define the term "actual damages," nor does it prescribe a method for calculating such damages. Generally, the term "actual damages" is "broadly construed to favor victims of infringement." On Davis v. The Gap, Inc., 246 F.3d 152, 164 (2d Cir.2001) (collecting cases and commentaries).
Consistent with this approach, courts have recognized several methods for calculating the compensable loss suffered by a copyright owner as a result of infringement. It is generally accepted that "the primary measure of recovery is the extent to which the market value of the copyrighted work at the time of the infringement has been injured or destroyed by the infringement." Fitzgerald Publ'g Co., Inc. v. Baylor Publ'g Co., Inc., 807 F.2d 1110, 1118 (2d Cir.1986); Mackie v. Rieser, 296 F.3d 909, 917 (9th Cir.2002) (quoting Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 512 (9th Cir.1985)). The fair market value of a copyrighted work is derived from an objective, not a subjective, inquiry. Mackie, 296 F.3d at 917 (general claims of "hurt feelings" or an owner's "personal objections to the manipulation of his artwork" do not factor into the determination of the work's fair market value).
Injury to a copyrighted work's market value can be measured in a variety of ways. The first possible measure is the amount of revenue that the copyright holder lost as a result of infringement, such as his own lost sales of the work. Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 708 (9th Cir.2004). Another cognizable measure is the fair market value of the licensing "fee the owner was entitled to charge for [the infringer's] use" of his copyrighted work. On Davis, 246 F.3d at 165 ("If a copier of protected work, instead of obtaining permission and paying the fee, proceeds without permission and without compensating the owner, ... the owner has suffered damages to the extent of the infringer's taking without paying what the owner was legally entitled to exact a fee for."). "In order to make out his claim that he suffered actual damage because of the infringer's failure to pay the fee, the owner must show that the thing taken had a fair market value."
The district court concluded that Dash was not entitled to actual damages under § 504(b) because he had not offered "sufficient, concrete evidence to indicate an actual value of his beat." Dash, 2012 WL 1658934, at *5. On appeal, Dash argues that the Einhorn Report provided evidence of TGB's value, specifically, that Dash would have received up to $3,000 for the use of TGB if he had been paid a licensing fee for the beat. Dash, therefore, relies on his lost licensing fee as the only measure of his actual damages claim.
Under the lost licensing fee theory, actual damages are generally calculated based on "what a willing buyer would have been reasonably required to pay to a willing seller for [the] plaintiffs' work." Jarvis v. K2 Inc., 486 F.3d 526, 533 (9th Cir.2007) (quoting Frank Music Corp., 772 F.2d at 512) (internal quotation marks omitted). "The question is not what the owner would have charged," nor what the infringer might have been willing to pay. On Davis, 246 F.3d at 166. Rather, the objective inquiry focuses on the fair market value of the work as "negotiat[ed] between a willing buyer and a willing seller" contemplating the use the infringer made. Id. at 172.
We note, first, that, as the movants for summary judgment, Appellees had the initial burden to show the absence of a "genuine dispute as to any material fact and [that they] were entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Bouchat, 346 F.3d at 522. Thus, on the question of actual damages, Appellees were required to show that there was no genuine dispute among the parties as to the existence of any actual damages and, accordingly, that Appellees were entitled to judgment on Dash's actual damages
As he did before the district court, Dash relies exclusively on the Einhorn Report's estimation of the licensing fee he might have been paid to support his actual damages claim.
The Einhorn Report opened with an Introduction, which stated that Dr. Einhorn had been retained to give his "professional valuation of economic damages that resulted from the unauthorized taking of a copyrighted musical segment — [TGB] — that was originally written by the plaintiff Anthony Dash." (J.A. 1080). Importantly, this Introduction then acknowledged that "defendants Floyd Mayweather and Cory Harris co-wrote over the beat," thereby adding original lyrics to Dash's copyrighted work to produce an "infringing musical composition," "Yep," which was played when Mayweather appeared at both WWE events. Id. The Introduction concluded with a review 17 U.S.C. § 504(b) and the observation, in relevant part, that Dash's "actual damages include lost licensing fees or actual foregone profits suffered as a consequence of the infringement." Id.
After summarizing Dr. Einhorn's qualifications, the documents reviewed, and its ultimate conclusions, the Einhorn Report described certain "Background" information concerning the parties and the general relationship between professional wrestling and music. Id. at 1083-85. This information included references to Dash's production of musical works for various "recording artists/labels and two video games, NBA Ballers and NARC," as well as Dash's 2009 nomination for Producer of the Year at the annual South Carolina Music Awards. Id. at 1083. The Background also reviewed the characteristics of professional wrestling matches in general and the history of ring appearances by various recording artists, noting that "wrestling shows have become a very important venue for the performance and synchronization of music." Id. Following this general review, the Einhorn Report noted that the WWE employs a general manager and vice-president to operate the company's music business, including "oversee[ing] music selection, licensing, and the hiring of composers and bands." Id. at 1084. In describing this "music business," Dr. Einhorn observed that the WWE's
The Einhorn Report then considered Dash's actual damages claim. In so doing, Dr. Einhorn first observed that, when calculating a copyright holder's lost licensing fee, "it is appropriate to consider those song licenses that were executed for the event and select as benchmarks those uses that are most comparable to the infringing events." Id. at 1087. He continued:
Id. Dr. Einhorn acknowledged that "Yep" "is a new derivative work based purportedly on [TGB]," and that "[n]either Y[ep] nor [TGB] were commercial[ly] released at any previous time." Id. In summarizing his review of several WWE contracts, Dr. Einhorn noted that he had "not viewed any licenses with terms that implicate comparable musical compositions used at Wrestlemania" and that he had "also not viewed any contracts that Floyd Mayweather entered that implicate the valuation of any musical work." Id.
In estimating the value of Dash's lost licensing fee, the Einhorn Report listed four benchmark license fees paid to other artists for the use of their songs at Wrestlemania XXIV. These songs were "written prior to the event and owned independently by their songwriter or publisher." Id. at 1088. The WWE's licensing contracts gave it "all use rights related to performance and synchronization of [the] musical compositions in Wrestlemania and surrounding events." Id. "Each of the[] four songs was a previously released work that also implicated master use rights for sound recordings (artists: Red Hot Chili Peppers, Snoop Dogg, Fuel, and Snoop Dogg) respectively controlled by a major record label." Id. The Einhorn Report included the specific fees paid for each of the songs. Id. The lowest was $3,000 and the highest was significantly more. Id. Based on the information provided concerning these benchmarks, the Einhorn Report acknowledged that "[f]rom a commercial perspective each composition is a more established work than" TGB. Id. Without further explanation, the Einhorn Report determined that, "[b]ased on these benchmarks, it is safe to conclude that [Dash] would have earned a maximal sum of $3,000 for the use of his musical composition." Id.
For the reasons that follow, we find that the Einhorn Report's estimation of Dash's lost licensing fee, without more, is too speculative to show that "a reasonable jury could return a verdict" in Dash's favor on his actual damages claim, and thus, that summary judgment was appropriate. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
First, Dr. Einhorn's estimation of Dash's lost licensing fee failed to expressly conclude that TGB had a market value. Rather, the Einhorn Report stated only that Dash "would have earned a maximal sum of $3,000 for use of his musical composition." (J.A. 1088) (emphasis added). In summarizing this conclusion, Dr. Einhorn reiterated that "[t]he respective valuation of [Dash's] missed opportunity" to earn a licensing fee was "no more than $3,000." Id. at 1082 (emphasis added).
To survive summary judgment on his actual damages claim, Dash was required to offer nonspeculative evidence that TGB had a fair market value, such that he "suffered actual damage because of the infringer[s'] failure to pay [a licensing] fee." On Davis, 246 F.3d at 166. Like any other evidence, expert testimony, such as the Einhorn Report, will not preclude summary judgment unless it raises a genuine dispute concerning a material fact. See Fed.R.Civ.P. 56(a); see also Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 92 (1st Cir.1993). By referencing TGB's maximal value — without any actual mention of a minimum value — the Einhorn Report failed to satisfy this burden. Rather it appears to have concluded only that, to the extent TGB had a market value, such value was no more than $3,000.
The Einhorn Report's failure to clearly state that TGB had a fair market value is notable in light of the fact that Dr. Einhorn was retained for the express purpose of evaluating the economic damages resulting from Appellees' alleged infringement of the beat. His omission of a clear statement of value suggests that he could not conclude, either with certainty or sound reasoning, that Dash would have been paid a licensing fee for Appellees' use of TGB. However, our analysis does not end with Dr. Einhorn's choice of words. Rather, we next consider whether, to the extent the Einhorn Report could be read to implicitly suggest that TGB had a fair market value, such suggestion, and the evidence upon which Dr. Einhorn relied, is sufficient to establish a genuine dispute of fact with respect to Dash's actual damages claim. We conclude that it is not.
Although we have determined that the Einhorn Report failed to expressly rebut Appellees' properly supported motions for summary judgment as to Dash's actual damages claim, we note that, even if the Einhorn Report had suggested or even expressly concluded that the use of Dash's beat at WWE events was of some value to Appellees, summary judgment would still be appropriate because the evidence supporting such conclusion is overly speculative in light of the record before us and, therefore, is insufficient to establish a genuine dispute regarding Dash's actual damages claim. See Waterman v. Batton, 393 F.3d 471, 478 n. 8 (4th Cir.2005) ("Opinion evidence is only as good as the facts upon which it is based.") (quoting Pace v. Capobianco, 283 F.3d 1275, 1280 n. 11 (11th Cir.2002) (internal quotation marks omitted)).
Under the lost licensing fee theory relied upon by Dash, evidence of a copyright holder's prior licensing or valuation of his work can provide sufficient support for his actual damages claim. See, e.g., Polar Bear Prods., 384 F.3d at 709 (affirming an actual damages award based on the copyright holder's actual price quote to the infringer). Here, Dash has failed to present any evidence — such as an affidavit or a prior contract — that he had ever sold, offered for sale, or licensed one of his beats to Appellees or anyone else. See Dash, 2012 WL 1658934, at *4. Instead, he offers only the Einhorn Report, which relies solely
Although the Einhorn Report did not rely on Dash's history as a musical artist when evaluating his actual damages claim, we note that the Background section did briefly reference this history. (J.A. 1083). Specifically, Dr. Einhorn stated that "Dash is a young music producer" who "has produced musical works for a number of recording artists/labels and two video games, NBA Ballers and NARC." Id. Dr. Einhorn continued, "For his professional efforts as a music creative, Mr. Dash was nominated in 2009 for Producer of the Year at the annual South Carolina Music Awards." Id. These brief statements, without more, are too speculative to create a genuine dispute as to Dash's entitlement to actual damages.
To survive summary judgment of an actual damages claim, a copyright holder "must show that the thing taken had a fair market value." On Davis, 246 F.3d at 166. Evidence of the owner's prior sale or licensing of copyrighted work will satisfy this burden when it is "sufficiently concrete." Id. at 161. For instance, in On Davis, the Second Circuit held that the plaintiff's testimony that "numerous rock stars" had worn his copyrighted eyewear in published photographs and, "that on one occasion he was paid a royalty of $50 for the publication by Vibe magazine of" such a photo, was "sufficiently concrete to support a finding of fair market value of $50 for the type of use made by Vibe." Id.; see also Jarvis, 486 F.3d at 534 (finding sufficiently concrete evidence to support an actual damages award when the record included expert testimony as to the specific value of each image and evidence of Jarvis' prior compensation for use of the images). The value of Davis' testimony concerning his prior royalty fee was not that it established a reasonable amount of damages, but rather that it provided concrete evidence that Davis would have received a royalty from The Gap for the use of his copyrighted eyewear in its advertisement. Stated differently, Davis' prior royalty showed that his copyrighted works generally had fair market value when used in printed advertisements, sufficient to support a finding that the specific, infringed work, in fact, had such value when similarly used. Neither Dr. Einhorn nor Dash has provided any evidence that Dash ever received compensation for his prior productions. Unlike in On Davis, there is simply no concrete evidence concerning Dash's past compensation for use of his musical works.
The record also fails to establish that the productions referenced in the Einhorn Report occurred prior to Appellees' alleged infringement of TGB. Specifically, TGB was composed in 2005 and allegedly infringed in 2008 and 2009. The Einhorn Report was authored on October 4, 2011. (J.A. 1079). To show that Dash's prior productions establish that he would have earned a licensing fee for Appellees' use of TGB in 2008 and 2009, the Einhorn Report should have, at a minimum, demonstrated that some of those productions occurred before the alleged infringement.
Although evidence of a copyright holder's own prior sale or licensing of copyrighted work can support the existence of actual damages under § 504(b), such evidence is not required to defeat a motion for summary judgment. Otherwise, first-time copyright owners would never be able to overcome summary judgment of an actual damages claim. Rather, evidence of an owner's prior sales is but one way of measuring "what a willing buyer would have been reasonably required to pay a willing seller" for the use that the infringer made. Jarvis, 486 F.3d at 533 (quoting Frank Music Corp., 772 F.2d at 512) (internal quotation marks omitted). Evidence of licensing fees paid to other artists for the use of other works may, in some cases, be sufficient to support the conclusion that a copyright holder would have been entitled to such a fee for the use of his work; however, such evidence may properly be rejected as a measure of damages if it is too speculative. See Frank Music Corp., 772 F.2d at 513.
Evidence of an infringer's entrance into licensing agreements with other copyright holders is not overly speculative when the benchmark licenses contemplate "comparable uses of comparable works." Real View, LLC v. 20-20 Techs., Inc., 811 F.Supp.2d 553, 557 (D.Mass.2011) (quoting Oracle USA, Inc. v. SAP AG, No. 07-1658, 2011 WL 3862074, at *7 (N.D.Cal. Sept. 1, 2011)) (internal quotation marks omitted); see also McRoberts Software, Inc. v. Media 100, Inc., 329 F.3d 557, 566-67 (7th Cir.2003) (rejecting a defendant's allegation that a lost licensing fee award was based on undue speculation in light of evidence that included proof of comparable software deals made by the defendant). But, if the benchmarks relied on are inapposite, they may, without more, be too speculative to support a copyright holder's claim for actual damages. See Country Rd. Music, Inc. v. MP3.com, Inc., 279 F.Supp.2d 325, 331 (S.D.N.Y.2003) (collecting cases recognizing the error of beginning with benchmark licenses for works or uses different from that made by the infringer).
Here, the district court concluded that Dash's evidence of the fees that the WWE paid to well-known artists at Wrestlemania XXIV was irrelevant and overly speculative because such artists were not similarly situated to Dash. Dash, 2012 WL 1658934, at *5. We agree that Dash's evidence is too speculative to support his actual damages
In calculating Dash's actual damages, Dr. Einhorn conceded that he had "not viewed any licenses or terms that implicate comparable musical compositions used at Wrestlemania" and that he had "also not viewed any contracts that Floyd Mayweather entered that implicate the valuation of any musical work." (J.A. 1087) (emphases added). Indeed, Dr. Einhorn not only expressly conceded that he had not analyzed comparable works, he also emphasized the differences between "Yep" and the selected benchmarks under the identified "factors to be considered in selecting a benchmark."
This is not to say that a copyright holder must always rely on precisely comparable works to defeat a properly supported motion for summary judgment of his actual damages claim. Indeed, it may be difficult or impossible for a first-timer, such as Dash, to identify such works. Accordingly, so long as a copyright holder's entitlement to lost licensing fees is not based on "undue speculation," § 504(b) does not require summary judgment of such a claim simply because it is based on non-comparable benchmarks. See On Davis, 246 F.3d at 164 (recommending that the term "actual damages ... be broadly construed to favor victims of infringement"). However, while a copyright holder may rely on benchmarks that are not comparable to the allegedly infringed work, he may not rely solely on such benchmarks. See Country Rd. Music, 279 F.Supp.2d at 331. To survive summary judgment, he must, at a minimum, demonstrate how the cited noncomparable benchmarks compel the
Here, the Einhorn Report detailed several facts, including the four benchmark licenses used to estimate Dash's lost licensing fee. But the report failed to include any description of the "process of reasoning" used to determine that Dash "would have earned a maximal sum of $3,000 for use of his musical composition." (J.A. 1088). Instead, Dr. Einhorn cited four admittedly inapposite benchmarks before summarily concluding that the lowest of such benchmarks was an appropriate maximal value of the licensing fee Dash could have earned for the Appellees' use of TGB.
To aid plaintiffs and their experts going forward, we note the many deficiencies in the Einhorn Report that compel this conclusion. First, although the Einhorn Report acknowledged that "it [would] not be appropriate simply to itemize all related music licenses and choose the average as a representative benchmark," it failed to explain how Dr. Einhorn selected the four benchmarks licenses cited to support his estimation of TGB's maximal value. Id. at 1087. While the report stated that certain factors should be used to determine the most comparable benchmark works, it failed to describe how such factors recommended selection of the specific benchmarks. Id. at 1088. Dr. Einhorn noted that such benchmarks were identified "[b]ased on [his] review of available information of songs used at Wrestlemania XXIV," but he failed to further explain why such clearly inapposite benchmarks were selected and whether he had reviewed any other licensing agreements when determining the appropriate benchmarks. Id.
Second, although the Einhorn Report acknowledged the differences between TGB and the selected benchmarks, it failed to indicate whether and to what extent Dr. Einhorn had considered such differences when estimating TGB's maximal value. For example, the report did not explain how the differences in audience recognition and release history factored into the analysis. Nor did Dr. Einhorn try
The Einhorn Report's failure to address the differences between TGB and the benchmark licensing fees is compounded by the subsequent analysis of the benchmark work-for-hire contracts, in which Dr. Einhorn apparently concluded that, because such contracts "involve[d] professional recording acts that are far more established than Dash, Mayweather, or Harris," they should not factor into the estimation of Dash's lost licensing fee. Id. at 1088. Thus, in a single page of his report, Dr. Einhorn both relied on and dismissed benchmark licenses by more established artists, without explaining why such disparate approaches to the various contracts were appropriate.
Third, and perhaps most importantly, although the Einhorn Report acknowledged that "Yep" was "a new derivative work based purportedly on [TGB]," it failed to explain at all how this fact impacted the analysis of Dash's actual damages claim. Id. at 1087. That is, Dr. Einhorn listed fees that the WWE paid to use completed works at Wrestlemania XXIV without any mention of the fact that TGB formed but one part of "Yep," "[t]he song [that allegedly] enhanced the emotional impact of Mayweather's ring persona" and was, therefore, "a critical part of raising heat in the audience before the match began." Id. at 1085. Dr. Einhorn simply failed to discuss the fact that the lyrics, which were co-written by Mayweather and Cory Harris, added original, non-infringing content to the entrance song. To the extent Dr. Einhorn concluded that "Yep" had value, he failed to conclude that TGB contributed to any such value.
In discussing the Einhorn Report's deficiencies, we do not mean at all to suggest that an expert opinion based on works by more established artists could never support an actual damages claim at summary judgment. Rather, in this case, the Einhorn Report's summary comparison of TGB to such works is insufficient, given that the benchmarks are not comparable to TGB and that Dr. Einhorn failed to explain how the differences between the benchmarks used and Dash's beat factored into his analysis of Dash's actual damages claim.
Before concluding our discussion of actual damages, we wish to address certain points raised in the Background section of Dr. Einhorn's report regarding the importance of music in WWE events and Dash's reputation as an artist. These facts, when considered with the WWE's payment of other licensing fees at Wrestlemania XXIV, could arguably be interpreted as evidence that TGB had some value, although we note that Dr. Einhorn did not cite to or rely on any of the facts set forth in the Background section when analyzing Dash's actual damages claim. More importantly, those facts are not sufficient to rebut a properly supported motion for summary judgment, even when considered with Dr. Einhorn's summary comparison of TGB to the listed benchmarks.
Nor is the fact that music, in general, has value to the WWE sufficient to show that Dash's beat, in particular, had such value. Under such reasoning, any piece of music, regardless of its quality or reputation, would necessarily have a fair market value to Appellees. Were such evidence sufficient to rebut a properly supported motion for summary judgment, a copyright holder would need to show only that the infringer generally values the type of copyrighted material infringed, without any evidence that the specific work had a fair market value. Such a result is untenable and contrary to the well-established principles regarding actual damages under § 504(b). While the term "actual damages" should be "broadly construed to favor victims of infringement," a copyright holder "must show that the thing taken had a fair market value." On Davis, 246 F.3d at 164, 166 (emphasis added). That some music has value to the WWE, even great value, is not enough to establish that TGB had a fair market value.
Moreover, the Einhorn Report itself fails to support such a conclusion. When reviewing the importance of entrance music to professional wrestling generally, and to the WWE specifically, Dr. Einhorn incorporated deposition testimony that "a music selection `makes [a WWE] product better, assuming it's a good piece of music.'" (J.A. 1084) (emphasis added) (quoting Lawi Dep. 105, Sept. 2011). He further acknowledged that the WWE generally pays licensing fees to artists for the use of works with certain characteristics, that is, "works and recordings with previous histories and audience recognition." Id. Thus, although music may play an important role in "raising heat" at professional wrestling events, the record before us fails to indicate that all music plays such a role. Accordingly, the general importance of some music to the WWE is not enough to establish that Appellees' would have paid Dash a licensing fee to use TGB as a component of "Yep." Id. at 1085.
Although Dash relies on the district court's reasoning in Wood v. Houghton Mifflin Harcourt Publishing, Co., 589 F.Supp.2d 1230 (D.Colo.2008), to support his claim for profit damages under § 504(b), we note that this case could, at first blush, be read to suggest that an infringer's payment for use of any copyrighted work of a particular type establishes that he would pay to use all works of that type. Id. at 1246. However, we do not read Wood so broadly. In that case, Houghton Mifflin Harcourt ("HMH") had purchased six licenses to use nine of Ted Wood's ("Wood") photographs in two textbook series and an educational periodical. Id. at 1235. Under the terms of these licenses, HMH agreed "to publish no more than 40,000 copies of the textbook or magazine in which [the] copyrighted photographs were to appear." Id. In his copyright infringement action, Wood alleged that HMH had printed more than 40,000 copies of the textbooks and periodicals and that HMH "committed an additional infringement of his copyright ... when it re-published
Likewise, the fact that Appellees used "Yep," which included TGB, is not enough to show that Dash's beat had fair market value. Allowing the "fact of use" alone to rebut a properly supported motion for summary judgment would entirely eliminate the copyright holder's obligation to show that his work had a fair market value, a requirement designed to combat the risk of abuse inherent in recognizing a plaintiff's lost licensing fee as a measure of § 504(b) actual damages. On Davis, 246 F.3d at 166. In the face of overwhelming evidence that his work lacked fair market value, the plaintiff would need only to reiterate his initial complaint — that the defendant used his work without his permission — to survive summary judgment. This result is almost certainly not what our sister circuits had in mind when they recognized lost licensing fees as a measure of actual damages under § 504(b). Such an approach would preclude a § 504(b) actual damages claim from ever being decided on summary judgment, no matter how speculative or deficient the copyright holder's evidence concerning his work's fair market value. This outcome not only obviates the requirement that a copyright holder show that the infringed work had a fair market value, it also runs contrary to the well-established principles governing summary judgment under Federal Rule of Civil Procedure 56. See Glynn v. EDO Corp., 710 F.3d 209, 216 (4th Cir.2013) ("`[C]onclusory allegations and speculative assertions... without further legitimate support clearly do[] not suffice' to create a genuine issue of material fact." (quoting Guinness PLC v. Ward, 955 F.2d 875, 901 (4th Cir. 1992))).
Thus, none of the facts recited in the Background section of the Einhorn Report is sufficient to show that Dash would have earned a licensing fee for Appellees' use of TGB, and, accordingly, none is sufficient to rebut Appellees' properly supported motions for summary judgment. Nor do these facts, taken together, create a genuine dispute for trial. Although we draw all reasonable inferences in favor of the nonmoving party, "[a] party `cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.'" Stone, 105 F.3d
Taken as a whole, the Einhorn Report demonstrated that 1) certain music plays an important role in professional wrestling matches; 2) the WWE recognizes the value of such music through its operation of an in-house music business; 3) the WWE played a song that included Dash's now-copyrighted beat at two events, Wrestlemania XXIV and the August 24, 2009, RAW broadcast; 4) the WWE paid four well-established artists licensing fees for use of their recognizable works at Wrestlemania XXIV; and 5) sometime prior to 2011, Dash received some recognition (but no compensation) for his work as a musical artist. We would be building inference upon inference to conclude that these facts were sufficient to rebut Appellees' evidence that Dash's musical works — including and especially TGB — do not have a fair market value. The importance of music to the WWE, and its payment for use of music from well-established artists, does nothing to compel the conclusion that Dash would have received a licensing fee for TGB. And Dash's sparse and unspecified history as a musical artist does not require a different result.
There are ways new artists such as Dash can establish the existence of actual damages. Dash could have submitted an affidavit regarding any prior sale, license, or valuation of his musical compositions. Dr. Einhorn could have provided some minimal explanation of the process by which he determined TGB's estimated maximal value from the four inapposite benchmarks cited. Without such evidence, any implicit suggestion that Dash could have earned a licensing fee for Appellees' use of TGB simply because well-established artists earned licensing fees for the use of their works by the WWE is too speculative to support Dash's actual damages claim. "[T]here is simply too great an analytical gap between the [benchmarks] and the opinion offered" to rebut Appellees' properly supported motions for summary judgment. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (discussing the sufficiency of an expert's opinion in the context of its admissibility under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)); see also Country Rd. Music, 279 F.Supp.2d at 331 (applying Joiner to an actual damages claim under § 504(b)).
"Although uncertainty as to the amount of damages will not preclude recovery, uncertainty as to the fact of damages may" and, in this case, does because the only evidence supporting the existence of actual damages is overly speculative.
Having concluded that Dash failed to establish his entitlement to actual damages, we now address his claim for profit damages. The district court granted Appellees summary judgment on this claim because it found that Dash had failed to present evidence that Appellees' revenues bore any causal link to the infringement. We affirm.
As stated above, the Copyright Act provides for the award of profit damages as follows:
17 U.S.C. § 504(b). The statute's "simplicity masks fiendish difficulties concerning the calculation of" these amounts in light of the numerous variables at issue in copyright law. Walker, 28 F.3d at 412. Therefore, a summary of our jurisprudence on this issue follows.
In Walker v. Forbes, Inc., we dealt with the question of the amount of profit damages to which a plaintiff is entitled when the infringing content forms only one component of the defendant's product. In that case, the defendant used a photograph taken by the plaintiff in one of its magazine articles. Id. at 411. The plaintiff sued, demanding the revenue that magazine issue had generated for the defendants. Id. Following a jury trial, the plaintiff was awarded three thirty-fifths of one percent of the claimed revenues. Id. at 410-11. The plaintiff appealed. Id. at 410. In upholding the award, we noted that, when "the infringement occurs as a small part of a much larger work, the fact finder properly focuses not on the profit of the work overall, but only on the profit that the infringement contributes." Id. at 415. "While [the defendant] made substantial sums from [the] issue, if only a small part of that amount can be attributed to the use of [the plaintiff's] photo, ... then only a small part is his reward." Id.
We expounded on this rule nine years later in Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514 (4th Cir.
In deciding the appeal, we discussed two methods by which a defendant can argue that summary judgment is appropriate as to all or some of a plaintiff's profit damages. First, a defendant can argue that the plaintiff has not met his initial statutory burden of "present[ing] proof ... of the infringer's gross revenue." 17 U.S.C. § 504(b). Following the precedent of our sister circuits, we further held that this "gross revenue" that plaintiffs are obligated to prove "`means gross revenue reasonably related to the infringement, not unrelated revenues.'" Bouchat, 346 F.3d at 520-21 (quoting On Davis, 246 F.3d at 160) (citing Mackie, 296 F.3d at 912-16; Univ. of Colo. Found., Inc. v. Am. Cyanamid Co., 196 F.3d 1366, 1375 (Fed.Cir. 1999); Taylor v. Meirick, 712 F.2d 1112, 1122 (7th Cir.1983) ("If General Motors were to steal your copyright and put it in a sales brochure, you could not just put a copy of General Motors' corporate income tax return in the record and rest your case for an award of infringer's profits.")). Therefore, we held that, in order to meet his initial burden under § 504(b), a plaintiff must not merely present proof of the amount of the claimed revenue streams, but must also provide "more than mere speculation as to the existence of a causal link between the infringement and the claimed revenues." Bouchat, 346 F.3d at 521. If the plaintiff fails to make this showing, summary judgment is appropriate.
Second, we noted that, even if the plaintiff meets his statutory burden of showing proof of the infringer's gross revenues as described above, summary judgment is appropriate if a defendant is able "to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work." 17 U.S.C. § 504(b). Although the statutory burden of proof on the issue of attributability rests with the defendant, this presents "no obstacle to a summary judgment award in favor of that party, so long as the requirements of Rule 56 are otherwise satisfied." Bouchat, 346 F.3d at 521-22. In order to prevail in this manner, the defendant must present evidence that all of the claimed profits are "attributable to factors other than the copyrighted work." 17 U.S.C. § 504(b). If the defendant's evidence is sufficient to "demonstrat[e] the absence of a genuine issue of material fact," the plaintiff must "bring forth facts showing that `reasonable minds could differ' on a material point." Bouchat, 346 F.3d at 522 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). If the plaintiff's evidence that the claimed revenues are attributable to the infringement is unduly speculative, "merely colorable," or "not significantly probative," summary
Therefore, we concluded in Bouchat that granting a defendant summary judgment on a revenue stream is proper under two circumstances. First, summary judgment is appropriate if the plaintiff fails to meet his initial burden of proving the infringer's gross revenues because "either (1) there exists no conceivable connection between the infringement and those revenues; or (2) despite the existence of a conceivable connection, [the plaintiff has] offered only speculation as to the existence of a causal link between the infringement and the revenues." Id. at 522-23. If the plaintiff fails to show such a conceivable connection or causal link, then he fails to show that the claimed revenues are reasonably related to the infringement. Second, even after the statutory burden has shifted to the defendants, summary judgment may be granted if the defendants file "a properly supported motion for summary judgment" showing that the claimed revenues are attributable entirely to factors other than the infringement, and the plaintiff fails to respond with evidence that can raise a genuine dispute as to the issue. Id. at 524.
In Bouchat, we held that the granting of summary judgment with respect to "the revenues from minimum guarantee shortfalls and free merchandise" was proper because those revenues, which were based on licensing agreements that predated the infringement, "lack[ed] all conceivable connection" to the infringement. Id. at 524. With respect to the remaining revenue streams on which summary judgment had been granted, we held that summary judgment was proper "despite the existence of a conceivable connection between the infringement and the level of revenue that the [d]efendants earned from these sources." Id. Although it was theoretically conceivable that the revenue streams were connected to the infringement, the plaintiff had "offered only speculative evidence of a causal link between the infringement and the level of the revenues." Id.; see also id. at 525 n. 10 ("[I]t defies credulity that a consumer would purchase NFL trading cards in order to catch a glimpse of the Flying B logo on a featured player's helmet; or video games, so as to see the logo on the simulated Ravens players; or a game program, simply because its artwork incorporated the Flying B."). Therefore, the plaintiff had failed to prove the defendants' gross revenues reasonably related to the infringement. We further held that summary judgment as to these revenues was also proper because the defendants had proven that the claimed revenues were entirely attributable to factors other than the infringement, and the plaintiff had failed to submit evidence in rebuttal as required under Rule 56. Id. at 524-25.
Because the plaintiff had failed to prove the defendants' gross revenues reasonably related to the infringement, and because the defendants' motion for summary judgment proved that the claimed revenues were not attributable to the infringement, we upheld the district court's grant of summary judgment.
We revisited the question of the reasonable relationship required between gross revenues and infringement two years later in Bonner v. Dawson, 404 F.3d 290, 294 (4th Cir.2005). In Bonner, the defendants erected and leased a building that infringed on the plaintiff's architectural copyright. Id. at 292. The plaintiff demanded all of the lease revenues as profit damages. Id. After the jury found for the defendants on this issue, the plaintiff moved for judgment
The plaintiff appealed the district court's denial of his motion for judgment as a matter of law, and we confirmed that a copyright plaintiff "has the burden of demonstrating some causal link between the infringement and [a] particular profit stream before the burden-shifting provisions of § 504(b) apply." Id. at 294 (citing Bouchat, 346 F.3d at 521). However, we rejected the district court's conclusion that, in order to show a causal link, the plaintiff was required to demonstrate "that the basis for the profits was the particularized design of the building." Id. Instead, we held that it was sufficient that the plaintiff had "produced evidence of the profits generated by the leasing agreements in the infringed building" because "[t]his amount was derived exclusively from the infringed building; no other source contributed to the generated funds." Id. Accordingly, we found that the plaintiff had met his initial burden under Bouchat of showing some causal link between the infringement and the claimed profit stream. Id. Despite this ruling, we affirmed the district court's judgment because the jury reasonably could have found that all of the claimed revenues were attributable to factors other than the infringement. Id. at 295.
The building in Bonner was distinguishable from the merchandise in Bouchat. In Bouchat, the causal link between the infringement and the profits alleged by the plaintiff required the jury to find that a football team's adoption of one logo design over another would cause consumers to purchase game programs, trading cards, or video games simply to see the infringing logo. Bouchat, 346 F.3d at 525 n. 10. Although there was a "conceivable connection" between the infringement and the claimed sales of merchandise containing the Flying B logo, any causal link between the two was so unlikely as to "def[y] credulity." Id. Because the plaintiff had provided no evidence that could persuade a reasonable jury that a causal link existed between the infringement and the merchandise sales, and also because the defendants had presented uncontested evidence proving that all of the claimed revenues were attributable to other factors, we held that summary judgment for defendants was proper. Id. at 525 & n. 10.
In contrast, the plaintiff in Bonner had presented evidence that the claimed revenues were derived solely from a building that infringed the plaintiff's architectural designs. Bonner, 404 F.3d at 294. This was sufficient to prove some causal link between the infringement of the designs and the revenues from the building based on those designs, even if further evidence showed that the infringed designs did not actually increase the building's revenues. See id.
In summation, whether at the summary judgment stage or at trial, a plaintiff seeking profit damages has an affirmative duty to prove the defendant's "`gross revenue reasonably related to the infringement.'" Bouchat, 346 F.3d at 520-21 (quoting On Davis, 246 F.3d at 160). This requires the plaintiff to prove (1) the amount of the claimed revenue streams,
The first step, alleging a conceivable connection, is not an exacting standard. A proffered connection will be considered "conceivable" even if it is highly unlikely that the infringement actually contributed to the claimed revenues. See id. at 525 & n. 10 (finding that a conceivable connection existed between the infringement of the plaintiff's logo and the defendants' sale of trading cards, video games, and football game programs even though it "defies credulity that a consumer would purchase" such products out of a desire to see an infringing logo featured therein). However, in order for a conceivable connection to exist, the connection between the infringement and the revenues must be "at least hypothetically possible." See id. at 524 (holding that the infringement was not conceivably connected to revenues which the defendants were entitled to receive via contracts that they had entered into prior to the infringement).
After the plaintiff has alleged a conceivable connection between the infringement and the claimed revenues, his task is not yet done. The plaintiff must also prove the existence of a "causal link between the infringement and the level of the [defendant's] revenues." Id. at 524-25. Once he has done so, the burden then shifts to the defendant to prove that those revenues are not actually attributable to the infringing aspects of the work. See Bonner, 404 F.3d at 294-95.
In the summary judgment context, a defendant can challenge the relationship between the claimed revenues and the infringement in any or all of three ways. First, the defendant can argue that the plaintiff cannot state a conceivable connection between the infringement and the claimed revenues. The plaintiff must respond to this challenge by arguing that some such connection exists. A defendant will be granted summary judgment on this basis only if it is not even "hypothetically possible" that the infringement could have affected the revenues, such as when the revenues were determined prior to the infringement. Bouchat, 346 F.3d at 524.
The second method by which a defendant can challenge the connection between the infringement and the claimed revenues on summary judgment is to argue that, although there may be a conceivable connection, the plaintiff has not presented sufficient evidence of a causal link between the infringement and the claimed revenues. If a defendant makes this argument, the plaintiff must respond by providing some "`non-speculative evidence that would ... suggest a link between the infringement and the [defendant's] supposedly enhanced revenues.'" Id. at 525 (omission provided) (alteration in Bouchat) (quoting Mackie, 296 F.3d at 911). The plaintiff is not required at this step to show that the infringement was the primary cause of the defendant's revenues, and a fair degree of inference is allowed. Cf. Bonner, 404 F.3d at 294 (holding that where the claimed revenues were derived exclusively from a building that was constructed based on infringing architectural designs, the jury was required to find that a causal link had been established). However, the link provided by the plaintiff must be reasonable in light of the evidence.
As a third option, a defendant can seek summary judgment on the basis that all of the claimed revenues are attributable to factors other than the infringement.
It is important to emphasize the distinction between what must be shown to demonstrate a causal link and what must be shown to rebut a defendant's argument that the revenues are not attributable to the infringement. In order to demonstrate a causal link, the plaintiff must show that the infringement could reasonably be viewed as one of the causes of the claimed revenues. In order to rebut a defendant's evidence that the claimed revenues are not attributable to the infringement, the plaintiff must show that at least some portion of the revenues was actually generated by the infringement, rather than by other factors. If the revenues have some reasonable causal link to the infringement, but the evidence shows that they are attributable to other factors, the plaintiff will have satisfied his burden of demonstrating a causal link but failed to rebut the defendants' evidence that the revenues are not attributable to the infringement. Bonner, 404 F.3d at 294-95 (finding that any reasonable jury would necessarily have found a causal link between an infringing building and the revenues it produced, but upholding the jury's verdict for the defendants because a reasonable jury could have found that the claimed revenues were attributable solely to the non-infringing aspects of the building).
All three stages of the summary judgment analysis were illustrated in Bouchat. With respect to the first step, we upheld summary judgment as to some of the defendants' revenues because the plaintiff had not shown that those revenues, which were derived exclusively from preexisting contracts, might be conceivably connected to the infringement. Bouchat, 346 F.3d at 524. With respect to the remaining revenues, we first noted that the defendants had presented strong evidence that the claimed revenues were attributable solely to factors other than the infringement, as required to support a motion for summary judgment on that issue. Id. at 525. Because the plaintiff had declined to present any non-speculative evidence, he had both failed to adduce evidence of a causal link and failed to present evidence to challenge the defendant's evidence regarding attributability, rendering summary judgment appropriate on both bases. Id. at 525 & n. 10.
Here, many of the revenue streams claimed by Dash have no conceivable connection to the infringement because they involve revenues that consumers
Specifically, Dash has stipulated that he has "no evidence that the playing of the `Yep' song at Wrestlemania XXIV or the August 24, 2009 RAW show increased any of the WWE revenue streams." (J.A. 933). Nor has Dash provided evidence that the playing of "Yep" increased any of the other Appellees' revenue streams. Instead, Dash contends that he is not required to submit specific evidence linking the claimed revenue streams to the infringement.
It is true that in some cases, like Bonner, the infringement will form such a significant aspect of the product generating the claimed revenues that no further evidence will be required to establish that those revenues were causally linked to the infringement. See id. However, when, as here, the infringing content forms only a small, incidental portion of the products that generated the claimed revenue streams, further evidence is necessary to link the claimed revenues to the infringement. See Bouchat, 346 F.3d at 525 n. 10; cf. Walker, 28 F.3d at 415 (holding that when "the infringement occurs as a small part of a much larger work, the fact finder properly focuses not on the profit of the work overall, but only on the profit that the infringement contributes"). Indeed, like the infringing logo on the trading cards, video games, and game programs in Bouchat, it "defies credulity that a consumer would purchase" home videos of Wrestlemania XXIV simply to hear "Yep" played when Mayweather entered the ring or watch the August 24, 2009, RAW broadcast in hopes of hearing the song played again. 346 F.3d at 525 n. 10. Further evidence was required before a reasonable trier of fact could find that Appellees' revenues were causally linked to their brief infringement of TGB. Because Dash failed to present such evidence, summary judgment was proper.
Instead of attempting to show that the claimed revenues are reasonably related to the infringement, Dash has rested his case on the fact that those revenues derive from products that peripherally include infringing content. This is insufficient. See Bouchat, 346 F.3d at 525 (holding that the fact that products depicted an infringing logo did not establish a connection between the infringement and the revenue from the sale of those products). Because Dash provided the factfinder with no reasonable basis for concluding that the infringement contributed to Appellees' profits, the district court properly granted Appellees summary judgment on Dash's claim for profit damages.
For the foregoing reasons, the judgment of the district court, as to Dash's entitlement to both actual and profit damages under 17 U.S.C. § 504(b), is affirmed.
AFFIRMED.
DAVIS, Circuit Judge, concurring in the judgment:
I concur in the judgment.
Additionally, Dash was required to show not merely that Appellees generated more revenue from playing "Yep" than from playing no song, but that they generated more revenue from playing "Yep" than from playing a non-infringing song. See Bouchat, 346 F.3d at 525 n. 10 (discussing whether the defendants' revenues were affected by "the team's adoption of one logo design rather than another," not whether the defendants generated more revenue using an infringing logo design than they would have generated if the team had had no logo at all).
Therefore, Dash's hypothetical scenarios do not convince us to reconsider the clear rule of law that a plaintiff cannot recover profit damages unless the claimed profits can be reasonably linked to the infringement. Bonner, 404 F.3d at 294; Bouchat, 346 F.3d at 522-23.
