Adding to this site’s archived case summaries involving combat sports PPV piracy, reasons for judgement were recently released by the US District Court, WD Kentucky, Louisville Division, assessing damages following commercial piracy of the Mayweather v. Ortiz boxing card.
In the recent case (J & J Sports Productions Inc. v. Caro) the Defendant operated a commercial establishment and showed the Mayweather v. Ortiz card without paying the commercial sublicencing fee of $2,200.
The Plaintiff sued and obtained default judgement. The Plaintiff sought maximum statutory damages of $110,000. In finding this request excessive and awarding damages equivalent to the cost of the commercial sub licence fee the Court noted as follows –
Based on these facts, J & J Sports asks the Court to award the maximum allowance for statutory damages, which would be $110,000 under § 605. (D.N. 38, 38-2) But that amount would be excessive. In a similar case from this district, J & J Sports received $1,000, the statutory minimum, under nearly identical circumstances. J & J Sports Productions, Inc. v. El Rey Mexican Restaurant, LLC, No. 3:10CV-730-S, 2014 WL 5500501, at *1 (W.D. Ky. Oct. 30, 2014).
In El Rey, the defendant illegally televised a fight for six individuals. Id. There was no cover charge, advertising, or promotional activity. The Court found that the plaintiff’s evidence of willfulness was weak and did not support a finding that the underlying violation was undertaken for commercial advantage or private financial gain, a necessity under § 605(e)(3)(C)(ii). Id.
Similarly, in Joe Hand Promotions, Inc. v. Tip Off, Inc., No. 3:08CV-600-S, 2013 WL 441989, at *1 (W.D. Ky. Feb. 5, 2013), another case in this district, the Court awarded slightly more than the statutory minimum and found no showing of willfulness. The Court analyzed § 553 instead of § 605, and based its determination on “the (1) absence of a cover charge, (2) patronage of 35 to 40 people, (3) the broadcast on one of two televisions on the premises, and (4) a lack of information concerning commercial gain by the violator.” Id.
There is no material distinction between those cases and this one. Like the offending establishments in El Rey and Tip Off, El Tapatio did not charge for entry, and did not advertise or promote the broadcast. (D.N. 38-4) There were few patrons. (Id.) And like the defendants in El Rey and Tipp Off, El Tapatio did not broadcast the fight for commercial advantage or private financial gain. Thus, Caro was not a willful violator under § 605(e)(3)(C)(ii). But Caro did violate § 605, resulting in a $2,200 loss for J & J Sports. (D.N. 37, 38) The Court considers an award of $2,200 to be reasonable and consistent with the purposes of the statute.