Adding to this site’s archived case summaries of damage awards for combat sports piracy, reasons for judgement were released this week by the US District Court, D. Arizona, awarding damages for the commercial piracy of UFC 165.
In this week’s case (Joe Hand Promotions Inc. v. Donaldson) the Defendant displayed UFC 165 at a commercial establishment without paying the commercial sub-licencing fees. The Plaintiff brought a motion for summary judgement that the Defendant failed to respond to. Joe Hand Promotions sought $30,000 in statutory and enhanced damages. Despite the defense failing to respond to the motion the Court found the requested damages excessive and awarded total damages of $8,000. In reaching this figure Senior District Judge Tielborg provided the following reasons:
Though there is no specific, established formula for calculating either statutory or enhanced damages under 47 U.S.C. § 605, courts within this district commonly consider “factors such as the maximum capacity of the commercial establishment, the total number of patrons present at the time of the unauthorized showing, and the amount defendant would have paid if it had purchased the rights to show the broadcast” in awarding statutory damages…In awarding enhanced damages, courts may “consider `prior infringements, substantial unlawful monetary gains, significant actual damages to the plaintiff, the defendant’s advertising of the broadcast, and the defendant’s charging a cover charge or premiums for food and drinks during the broadcast.
Here, Plaintiff’s investigator, Amanda Hidalgo, stated in her affidavit that Crossroads Bar & Grill has a maximum capacity of approximately 70 people and that 16 individuals were present within the Bar during her investigation. (Doc. 28-2 at 2-3). Plaintiff’s investigator also indicated that she saw the Program playing on four of the six televisions within the establishment. Id. Although Plaintiff’s investigator does not mention that the program was advertised in any manner or whether patrons of Crossroads Bar & Grill had to pay a cover charge and/or premiums, Defendants have admitted that they advertised the program and charged a cover charge through their failure to respond to the requests for admissions. (Doc. 28-3 at 8-36). Further, Plaintiff has submitted evidence indicating that it would have cost Defendants $850.00 to legally exhibit the Program within Crossroads Bar & Grill by purchasing the sublicense fee from Plaintiff. (Doc. 28-4 at 3, 36). However, there is no specific evidence of a premium being charged for food or drinks. Additionally, Plaintiff indicates in its Brief in Support of its Motion for Summary Judgment that this is the third allegation of piracy it has made against Defendants, noting that two additional cases against Defendants are pending but have yet to be adjudicated. (Doc. 28-1 at 18).
Based on the evidence presented, the Court concludes that a statutory damages award pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II) in the amount of $3,000 is just. Further, because the evidence indicates that Defendants’ violation was willful and for purposes of both commercial and personal gain, the Court also awards an enhanced damages award pursuant to § 605(e)(3)(C)(ii) in the amount of $5,000.