What happens when a fighter walks out to music in a live combat sports event without proper licencing arrangements in place? Reasons for judgement were released in late 2013 addressing this issue (with the Supreme Court of the United States denying certiorari on March 31, 2014). In short the artist can seek statutory damages or elect to seek actual and profit damages as a result of the infringing use. As demonstrated in the recent case, the latter can be a difficult task.
In the recent case (Dash v. Mayweather) “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.” In addition to this “Mayweather appeared as a live guest host on RAW. As in Wrestlemania XXIV, “Yep” was played in connection with Mayweather’s appearance.”
Mayweather did not have a licencing agreement with Dash to use his beat. Instead of electing statutory damages available under Title 17,United States Code, Section 504(c), Dash sued for actual and profit damages. The claim was ultimately dismissed with the Court finding that Dash could prove neither head of damage. In dismissing the Claim the United States Court of Appeals, Fourth Circuit, reasoned as follows:
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).” With respect to the availability of actual and/or profit damages, Section 504(b) provides that:
The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.
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 else’s intellectual property without their consent.”…
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…
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.