Adding to this site’s archived posts addressing combat sports piracy, reasons for judgement were released recently by the US District Court, SD West Virginia, Charleston Division, assessing damages for the commercial piracy of UFC 170.
In the recent case (Joe Hand Promotions, Inc. v. Harrison) the Defendant displayed UFC 170 in a commercial establishment without paying commercial sub licencing fees to the Plaintiff. The cost would have been $1,300.
The Plaintiff obtained default judgement and requested $60,000 in damages although the Court rejected this request as being disproportionate.
In assessing statutory damages at $5,000 and enhanced damages at $10,000 District Judge Thomas E. Johnston provided the following reasons:
In this case, awarding a per-patron rate of $100 for each of the seven patrons present during the Broadcast is insufficient, as Joe Hand’s provable losses are at least $1300, the amount of the sublicense fee. Similarly, the Court finds that a statutory damages award limited to the equivalent of the sublicense fee would have little deterrent effect on future piracy. The Court finds statutory damages in the amount of $5000 is just compensation for Defendants’ violation of Section 605. This amount takes into account what appear to be repeated violations of the statute on the part of Defendants, as indicated by Club Infinity’s Facebook advertisements. However, given that Club Infinity does not appear to have acquired substantial monetary gain through its illegal activity, the Court finds that awarding the statutory maximum of damages is excessive and would create an unjustified disparity with similar cases…
Enhanced penalties often bear a relation to the amount of the statutory award. See, e.g., Lawhon, 2016 WL 160730, at *2 (awarding enhanced damages equal to three times the statutory damages); Joe Hand Promotions, Inc. v. Upstate Recreation, No. 6:13-2467-TMC, 2015 WL 685461, at *9 (D.S.C. Feb. 18, 2015) (awarding two-and-one-half times the statutory award in enhanced damages); J & J Sports Prods., Inc. v. Romenski, 845 F. Supp. 2d 703, 708 (W.D.N.C. 2012) (awarding total damages equal to treble the sublicense fee). When determining additional damages, other courts have considered factors such as: “(1) repeated violations over an extended period of time; (2) substantial unlawful monetary gains; (3) significant actual damages to plaintiff;
(4) defendant’s advertising for the intended broadcast of the event; and (5) defendant’s charging a cover charge or charging premiums for food and drinks.” Wing Spot, 920 F. Supp. 2d at 668 (quoting Kingvision Pay-Per-View Ltd. v. Rodriguez, No. 02 CIV. 7972 (SHS), 2003 WL 548891, at *1 (S.D.N.Y. Feb. 24, 2003)).
Joe Hand points out by affidavit that these factors are somewhat limited in their utility. (See Aff. of Joe Hand Jr., President, at ¶ 14.) While that may be true, the Court has no evidence that the circumstances of this case deviate from the norm, save perhaps for evidence suggesting that Club Infinity had some history of intercepting Joe Hand’s satellite broadcasts in a similarly illegal manner. Joe Hand points to no other aggravating factor that would warrant an exceptional enhanced damages award. And if the Court focuses its attention on the five factors delineated above, only the first, as mentioned earlier, is particularly noteworthy. The other factors are neutral or even weigh against an increased award of enhanced damages. With regard to the fifth factor, for example, Mr. Shifflett attests that he was not charged a cover fee at Club Infinity on the night of the Broadcast. (Shifflett Aff. at 1.) The Court also notes that any attempt on the part of Club Infinity to attract patrons by displaying the Broadcast appears to have been unsuccessful. Apart from Club Infinity’s staff, Mr. Shifflett observed only seven patrons present that night. Thus, although enhanced damages are appropriate whether Defendants’ conduct resulted in great financial gain or not, the Court finds that $50,000 is excessive. Consistent with the deterrence goals of § 605, and as a means of penalizing Club Infinity’s repeated violations, the Court awards enhanced damages equal to two times the statutory damages, or $10,000. This results in total damages of $15,000 against Defendants.
Combat Sports Law 