Is Revenue from Concerts Recoverable in Copyright-Infringement Cases?

Is revenue from concerts an appropriate element of damages in a copyright-infringement case involving a musical composition? If you represent the plaintiff, I know you want it.
In January, the United States District Court for the Central District of California granted a motion in limine excluding evidence of Robin Thicke’s touring income in connection with the impending copyright-infringement trial in the Blurred Lines case: Williams v. Bridgeport Music Inc.[1] Was that decision consistent or inconsistent with established principles of copyright law?

The Copyright Act 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 by subsection (b); or (2) statutory damages, as provided by subsection (c).”[2] In a typical case involving a claim of infringement of a musical composition, actual damages include elements such as the value of a license if the infringer had properly licensed the infringed work. With respect to the infringer’s profits, the Act provides:

The copyright owner is entitled to recover ... any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.[3]

In a typical case involving allegations of infringement of a musical composition through sales of copies of the infringed work, evaluating the recoverable damages is generally straightforward: some portion of the revenue from the sale of each unit can be awarded as the profit attributable to the infringement. Those types of profit are direct profits.

As the source of the revenue is less clearly tied to the infringement, however, determining the appropriate recovery becomes more difficult. For instance, is revenue from ticket sales for concerts where the infringing work is performed revenue that is attributable to the infringement? Is revenue from concessions at those same shows attributable to the infringement? Those types of profits, to the extent they are earned as a result of the infringement, are indirect profits, and this article examines the body of law that has developed regarding calculating indirect profits.

In 1940, the Supreme Court of the United States decided a matter of “first impression in the application of the copyright law,” identifying the questions presented as:

whether, in computing an award of profits against an infringer of a copyright, there may be an apportionment so as to give the owner of the copyright only that part of the profits attributable to the use of the copyrighted material as distinguished from what the infringer himself has supplied, and, if so, whether the evidence affords a proper basis for the apportionment decreed in this case.[4]

The infringed work was the play entitled Dishonored Lady, and the infringing work was the motion picture titled Letty Lynton.[5] The district court awarded all of the net profits, but the court of appeals reversed, “holding that there should be an apportionment and fixing petitioners’ share of the net profits at one-fifth.”[6] The owners of the play sought review.

The court of appeals concluded that the infringement was deliberate.[7] Nevertheless, the court of appeals “was resolved ‘to avoid the one certainly unjust course of giving the plaintiffs everything, because the defendants cannot with certainty compute their own share.’”[8]

Petitioners argued that apportionment was forbidden by the language of the statute. Section 25(b) of the 1909 Act provided for the recovery of “‘all the profits which the infringer shall have made from such infringement.’”[9] The Supreme Court noted that “The purpose is … to provide just compensation for the wrong, not to impose a penalty by giving to the copyright proprietor profits which are not attributable to the infringement.”[10]

The court then analyzed the development of the remedy, in copyright cases, of recovering an infringer’s profits. Recovery of an infringer’s profits was not a remedy that was contained in the 1909 Act, “but that recovery had been allowed in equity both in copyright and patent cases as appropriate equitable relief incident to a decree for an injunction.”[11] The equitable consideration, the court noted, was “not to inflict punishment but to prevent an unjust enrichment by allowing injured complainants to claim ‘that which, ex oequo et bono, is theirs, and nothing beyond this.’”[12]

In patent cases, the court observed, recovery of an infringer’s profits was not recoverable pursuant to statute until 1870.[13] Before then, the court noted, the basis for awarding profits attributable to the infringement was based on the following reasoning:

The infringer is liable for actual, not for possible, gains. The profits, therefore, which he must account for, are not those which he might reasonably have made, but those which he did make, by the use of the plaintiff’s invention; or, in other words, the fruits of the advantage which he derived from the use of that invention over what he would have had in using other means then open to the public and adequate to enable him to obtain an equally beneficial result. If there was no such advantage in his use of the plaintiff’s invention, there can be no decree for profits, and the plaintiff’s only remedy is by an action at law for damages.[14]

The court turned to the legislative history surrounding the creation of Section 25 of the 1909 Act and found that “the apparent intention of Congress was to assimilate the remedy with respect to the recovery of profits to that already recognized in patent cases.”[15] The court then wrote that its own earlier prior decisions did not preclude awarding only those profits attributable to the infringement.[16] Although the petitioners urged the court to interpret several of its earlier decisions to the contrary, the court found:

We agree with the court below that these cases do not decide that no apportionment of profits can be had where it is clear that all the profits are not due to the use of the copyrighted material, and the evidence is sufficient to provide a fair basis of division so as to give the copyright proprietor all the profits that can be deemed to have resulted from the use of what belonged to him.[17]

The court then returned to the analogy of patent-infringement cases. In many instances, the “plaintiff’s patent covers only a part of the machine and creates only a part of the profits.”[18] The question then became one regarding the burden of proof, and apportionment was not found only where the defendant’s misconduct made apportionment “not merely difficult but impossible.”[19] Mathematical exactness was not required; “[w]hat was required was only ‘reasonable approximation’ which usually may be attained ‘through the testimony of experts and persons informed by observation and experience.’”[20] The court concluded its review of patent cases by writing, “We see no reason why these principles should not be applied in copyright cases.”[21]

Petitioners then urged the court to refuse to apportion because the infringement was deliberate. The court refused, reasoning that such a result would impose an unauthorized penalty rather than do equity.[22]

Finally, the court considered the actual apportionment at issue. The court of appeals had considered “the actors, the scenery, the producers, the directors and the general overhead.”[23] The testimony reflected that “the talent and popularity of the ‘motion picture stars’ generally constitutes the main drawing power of the picture.”[24] Although one expert witness had testified, unrebutted, that the infringed work contributed nothing to the motion picture, the court of appeals had been unwilling to accept that testimony blindly.[25] The court of appeals had awarded 20 percent of the profits, and the Supreme Court affirmed the decision.[26]

Moving forward 43 years, Judge Posner, writing for the United States Court of Appeals for the Seventh Circuit, addressed a number of errors in a damages calculation in a copyright-infringement case, Taylor v. Meirick, that he observed brought “to mind Judge Friendly’s cautionary remarks in a related context about ‘an array of figures conveying a delusive impression of exactness.’”[27]

In Taylor, the defendant conceded copying and selling maps created by the plaintiff.[28] With respect to his own losses, the plaintiff estimated his lost revenue and deducted his actual revenue.[29] The court of appeals refused to affirm that measure of determining loss, noting that “Taylor did not deduct a penny” from his revenue and that the award therefore could not reflect his lost profit.[30] “When a plaintiff contends that lost sales revenue would have been all profit, the contention is sufficiently improbable to require him to come forward with substantiating evidence, which Taylor failed to do.”[31]

Turning to the plaintiff’s method of calculating the defendant’s profit, the court criticized two components of the plaintiff’s calculation. First, the court rejected the calculation of the defendant’s net profit; the calculation failed to subtract deductible expenses that were clear from the defendant’s income tax returns.[32]

Second, the court rejected the plaintiff’s estimate that 2 percent of defendant’s profits were attributable to the infringement.[33] The court acknowledged that the plaintiff was only required to prove the infringer’s gross revenue, “[b]ut all that means is that Taylor could have made out a prima facie case for an award of infringer’s profits by showing gross revenues from the sale of the infringing maps.”[34] Taylor had included revenue from sales of items in addition to the infringing maps; Taylor introduced the defendant’s entire gross revenue.[35] In rejecting the plaintiff’s calculation, the court wrote:

t was not enough to show Meirick’s gross revenue from the sale of everything he sold, which is all really, that Taylor did. 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.[36]

In other words, plaintiff should have shown a causal link between, on the one hand, the gross revenue included in the calculation and, on the other hand, the infringement. If one who purchases a concert ticket has no way of knowing whether an artist will perform the infringing work, then how can the revenue from the sale of the ticket be revenue that is attributable to the infringement?

Likewise, in Cream Records Inc. v Jos. Schlitz Brewing Co., Cream Records sued defendants for copyright infringement, alleging that defendant’s commercial for malt liquor included an unauthorized portion of “The Theme from Shaft.”[37] The jury returned a verdict on liability, and the parties submitted the issue of damages to the court.[38]

The district court noted that the commercial contained a 10-note ostinato from the infringed work and that the commercial did generate sales.[39] The district court awarded one-tenth of one percent of Schlitz’s profit on malt liquor.[40]

The court of appeals affirmed the award against Schlitz.[41] The court of appeals wrote, “Where it is clear, as it is in this case, that not all of the profits are attributable to the infringing material, the copyright owner is not entitled to recover all of those profits merely because the infringer fails to establish with certainty the portion attributable to the non-infringing elements.”[42] Rather, the court of appeals found that the district court correctly applied “some division which may rationally be used as a springboard” to assign some percentage of the revenue to the alleged infringement.[43]

In other words, the court required plaintiff to prove that the revenue plaintiff sought to recover had been generated by the infringement itself. So, how does one prove the gross revenue or profits that are attributable to the infringement?

In Estate of Vane v. The Fair Inc., plaintiff licensed the defendant to use plaintiff’s photographs in print advertisements. Defendant then used the photographs in television advertisements, and plaintiff sued for copyright infringement.[44] Defendant’s sales records “were not detailed enough to show the amount received from sales of particular items shown” in plaintiff’s photographs, so plaintiff presented expert proof.[45] The expert calculated the amount of revenue generated by each dollar spent on advertising, deducted certain direct operating expenses and then claimed that plaintiff was entitled to recover as profit attributable to the infringement that sum of revenue generated by the money spent on the advertisements containing plaintiff’s photographs.[46]

The court of appeals recognized that expert testimony was sufficient to prove an infringer’s sales or profits.[47] The court found, however, that the district court properly concluded that the testimony did not establish “what profits are attributable to the infringement.”[48] First, the expert’s opinion failed to consider the expenses other than the cost of the photographs that were incurred in making the television commercial. For instance, the expert’s opinion failed to consider the cost of air time, the producer’s fee and the cost of other photographs used in the commercial.[49] Second, the infringing slides “appeared during only part of the time the commercials were on the air,” and the court concluded that attributing all the profits the commercial earned would be “irrational.”[50] Third, the expert’s opinion “did not purport to show the relative importance of different elements of the commercials in generating profits.”[51]

Applying those principles to an analysis of concert revenue, a plaintiff’s expert opinion would have to go further than simply summarizing gross concert revenue. One could reasonably ask whether Estate of Vane’s analysis misapplies the plain language of the Copyright Act. The act provides:

In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.[52]

A careful reading of both the act and the case reflect that the court correctly applied the act. First, in the context of a concert, one must examine the source of the revenue. If the plaintiff seeks the artist’s revenue from concert performances, that sum will not be the gross revenue generated by ticket sales. In order to examine the artist’s revenue from live performances, the gross number that the plaintiff would need to prove would be the amount actually paid to the artist. Then, the artist defendant would have the obligation to prove deductible expenses and elements of profit attributable to factors other than infringement. For instance, the artist may owe commission on that income to a personal manager, a business manager and a lawyer, and those payments should be appropriate deductions in establishing the artist’s profits. Conversely, plaintiff’s offering an opinion that considered the gross revenue generated by the concert itself should be inadmissible if offered to show the artist’s profit from live performances.

In Frank Music Corp. v. Metro-Goldwyn-Mayer Inc.,[53] the United States Court of Appeals for the Ninth Circuit noted that plaintiffs were only entitled to recover “ascertainable indirect profits.”  The opinion, however, is unhelpful in determining how to calculate indirect profits. The underlying infringement concerned the unauthorized use of plaintiffs’ “dramatico-musical” work in a musical revue that the MGM Grand Hotel presented in its Ziegfeld Theatre.[54] The court of appeals affirmed the district court’s award of 2 percent of the hotel’s indirect profit.[55] The court of appeals noted that the district court had considered other factors that contributed to the defendant hotel’s profits and gaming operations, such as guest accommodations, restaurants, swimming pools and advertising.[56] The court of appeals, however, failed to share the district court’s rationale in concluding that two percent of indirect profit was attributable to the infringement.

The court did, however, provide helpful guidance in how to determine the contribution of the infringing work to the gross revenue. The musical revue included 10 acts, and the infringing material was included in only one of the 10.[57] The court was faced with determining what percentage of the direct revenue was attributable to the infringement. “If the district court relied exclusively on a quantitative comparison and failed to consider the relative quality or drawing power of the show’s various component parts, it erred.”[58]

So, when are indirect profits not recoverable? In Business Trends Analysts Inc. v. The Freedonia Group Inc., the United States Court of Appeals for the Second Circuit found that indirect profits could be recovered so long as they were “based on a factual basis rather than ‘undue speculation.’”[59]

In Walker v. Forbes Inc., the United States Court of Appeals for the Fourth Circuit observed:

In establishing the infringer’s gain, the assessment in every case must be guided by the rule that the statute awards the plaintiff only the “profits of the infringer that are attributable to the infringement.” 17 U.S.C. § 504(b) (emphasis supplied). This is a rule of causation … [60]

In Walker, a photographer sued Forbes for copyright infringement, claiming that the magazine reproduced his copyrighted photograph without his permission, and a jury awarded plaintiff “damages in the amount of $5,823.”[61] Plaintiff appealed, claiming that he was entitled to a much larger portion of the $6,794,301.23 revenue attributable to the publication of the issue in which plaintiff’s photograph appeared.[6] The sources of the revenue were advertising, subscriber sales and newsstand sales, and the parties stipulated to the amount of revenue.63

The court of appeals affirmed the award of damages. The proof at trial revealed that “advertising is bought far in advance of publication or even assembly of the contents of an issue.”[64] Thus, an advertiser could not have known that plaintiff’s photograph would appear in the publication that would contain its advertising. Causally, that revenue could not be attributable to the infringement. In addition, the proof at trial established that $100 was the standard payment for a photograph that occupied the same size of a page as plaintiff’s photograph.[65]

The United States District Court for the Eastern District of Michigan found in Rainey v. Wayne State University that “plaintiff’s claim for profit damages must be dismissed because plaintiff has failed to show that defendants’ profits are attributable to the alleged infringement and her claim is pure conjecture.”[66] In Rainey, the court examined damages available to a plaintiff whose paintings were included without authorization in a brochure distributed at the 1997 North American Auto Show.[67] Granting summary judgment in favor of defendants, the court found that “the allegedly infringing brochure benefitted defendants only tangentially as it cannot be traced directly to any car sales.[68] The court also noted that, “[a]lthough plaintiff is correct that indirect profits of the infringer may be awarded, such claims are difficult to prove and are often unsuccessful.”[69]

In The University of Colorado Foundation Inc. v. American Cyanamid Company, the United States Court of Appeals for the Federal Circuit made clear that proving damages based upon a claim of indirect profits required more than simply offering a defendant’s gross revenue into evidence.[70] The district court found that defendant had committed copyright infringement by using plaintiffs’ original works in defendant’s patent application, but the district court also found “that the University did not prove any damages from the copyright infringement.”[71] On appeal, plaintiffs argued that their having proven defendant’s gross sales related to the infringing product protected by the patent shifted the burden of proof to defendant “to prove those elements of its profits that were attributable to factors other than copyright infringement.”[72] The court of appeals, affirming the district court, noted “[t]he University’s argument presumes that the sales of reformulated Materna were due to Cyanamid’s copyright infringement. The University had the burden to show this connection.”[73]

Bouchat v. Baltimore Ravens Inc. presents an even more nuanced analysis. In November 1995, the public learned that the Cleveland Browns football team was moving to Baltimore, and the team “adopted the name ‘Ravens’” in March of 1996.[74] Frederick Bouchat, a security guard, designed a logo that was inadvertently sent to NFL Properties to design the Raven’s “Flying B” logo.[75]

Bouchat claimed that “virtually every category of defendants’ gross revenue would include revenues attributable to the infringement.”[76] The district court observed that the logo itself had no material value until the defendants used the logo. The district court found that “a reasonable jury could find there to be some profit attributable to the infringement in regard to the sale (by defendants or licensees) of merchandise bearing the ‘Flying B’ logo.”[77] The court then found that “[t]here has been no sensible argument presented, much less evidence, that could support a conclusion that any other source of revenue could have been affected by the use of the ‘Flying B’ logo.”[78] The court therefore granted, in part, defendants’ motion for partial summary judgment and limited the claim for damages accordingly.[79]

On appeal, the United States Court of Appeals for the Fourth Circuit affirmed not only the exclusion of the evidence of profits from revenue sources unrelated to merchandising but also the jury verdict finding that Bouchat was not entitled to any of defendants’ profits.[80] The question on appeal was whether the district court “erroneously failed to accord [Bouchat] the benefit of a statutory presumption that an infringer’s revenues are entirely attributable to the infringement.”[81]

The court of appeals found that, when excluding an infringer’s revenue based on a motion for summary judgment, the sources of revenue fell into two categories:

(1) those in which there existed no conceivable connection between the infringement and a given revenue stream; and (2) those in which, despite the existence of a conceivable link, the plaintiff failed to offer anything more than mere speculation as to the existence of a causal connection between the infringement and the claimed revenues.[82]

The court then focused on the first category: no conceivable connection between the infringement and the revenues claimed by the plaintiff. The court noted that the United States Court of Appeals for the Second Circuit had excluded revenue from sources not promoted by an infringing advertisement in On Davis v. The Gap Inc.[83] The Second Circuit held “that ‘the term “gross revenue” under [504(b)] means gross revenue reasonably related to the infringement, not unrelated revenues.’”[84]

Turning to the second scenario, where the infringement at least conceivably generated certain revenue streams, the Bouchat court looked to the Ninth Circuit for guidance. In Mackie v. Rieser, the Ninth Circuit analyzed profits arising out of the Seattle Symphony Orchestra’s “inclusion in an advertising brochure of an image of one of Mackie’s sculptures.”[85] The trial court in Mackie granted summary judgment in favor of the defendants “[w]hen Mackie failed to respond to the summary judgment motion with even a single piece of evidence suggesting the existence of an actual causal connection” between the infringement and any revenue source.[86] The Ninth Circuit affirmed, “‘[b]ecause Mackie [had] failed to adduce any non-speculative evidence that would suggest a link between the infringement and the Symphony’s supposedly enhanced revenues.’”[87]

Applying those principles to the infringement regarding the Raven’s “Flying B” logo, the Fourth Circuit observed that, in response to defendants’ motion for summary judgment seeking to exclude certain sources of revenue, “Bouchat rested on his speculation that somehow, somewhere, some part of the defendants’ revenues from these sources was influenced by the fact that defendants selected the Flying B rather than some other logo.”[88] Defendants, on the other hand, had “established in their motion for summary judgment that there existed no causal link between their adoption of the infringing Flying B logo” and the revenue sources at issue.[89] Consequently, the court of appeals affirmed the district court’s decision.[90]

Judge Widener dissented. Returning to Walker v. Forbes, he noted that the specific jury instruction approved in that case, which he called the Walker instruction, “also informs the jury that profits should be deemed attributable to the alleged infringement unless the defendant proves otherwise.”[91] He further reasoned that the district court erred in not instructing “the jury that they must presume all profits are attributable to the infringement unless the defendants prove otherwise.”[92]

The dissent, however, ignores a fundamental element of the Walker decision: “the statute awards the plaintiff only the ‘profits’ of the infringer that are attributable to the infringement.”[93] In other words, the plaintiff always bears the burden of establishing a causal link between the revenue source and the alleged infringement.

Andreas v. Volkswagen of America further clarifies the relationship between causation and the presumption to which a plaintiff is entitled:

The burden of establishing that profits are attributable to the infringed work often gets confused with the burden of apportioning profits between various factors contributing to the profits. “[T]he plaintiff has the ‘burden’ to demonstrate a nexus between the infringement and the indirect profits before apportionment can occur.”[94]

In Andreas, plaintiff claimed copyright in a drawing titled “Angels of Mercy.”[95] He also paired the drawing “with the accompanying text he authored: ‘most people don’t know that there are angels whose only job is to make sure you don’t get too comfortable & fall asleep & miss your life.’”[96]

Defendant Volkswagen of America Inc., doing business as Audi of America Inc., released the Audi TT coupe in the United States, and its advertising agency created three television commercials to promote the release.[97] The “Wake Up” commercial “depicted an Audi TT coupe in a garden surrounded by angelic looking neoclassical statues.”[98] The voiceover that accompanied the commercial recited:

I think I just had a wake-up call, and it was disguised as a car, and it was screaming at me not to get too comfortable and fall asleep and miss my life.[99]

The trial court granted a motion in limine excluding evidence of “gross revenues from sales of any automobile other than the TT coupe.”[100] The jury returned a verdict against defendants that included $570,000 representing 10 percent of Audi’s after-tax profits on sales of the TT coupe during the time the commercial aired.[101] The district court vacated the award representing Audi’s profits.[102]

The United States Court of Appeals for the Eighth Circuit reversed.[103] Audi argued on appeal that the plaintiff failed “to establish a causal connection between the infringement and its gross revenues from the sale of the TT coupe.”[104] The court of appeals disagreed. Although the district court had concluded that plaintiff “failed to prove that the infringed words resulted in the sale of any TT coupe,” the court of appeals found that “the jury had enough circumstantial evidence to find that the commercial contributed to the profitable introduction of the TT coupe.”[105]

The court of appeals noted that the appropriate standard of review required the court to read the evidence to support the verdict “if at all reasonable.”[106] The court then reviewed some of the evidence:

1. The “infringement was the centerpiece of a commercial” that depicted nothing except the car;
2. Audi “enthusiastically presented the commercial to its dealers as an important and integral part of its launch;”
3. Sales while the commercial ran exceeded expectations;
4. The commercials received high ratings, and
5. Audi paid its advertising agency a substantial bonus.[107]

Audi relied on many of the cases discussed in this article, including Univ. of Colo., Freedonia Group, Rainey and Mackie. The court of appeals noted, however, that each of those cases specifically found that the plaintiff had failed to prove a causal connection between the revenue at issue and the infringement.[108]

Conclusion

So, did the district court in Blurred Lines correctly exclude evidence of Robin Thicke’s touring income? The same court reached a somewhat different result in Fahmy v. Jay-Z.[109] In Fahmy, the district court denied plaintiff’s motion for partial summary judgment seeking a ruling that concert revenues were recoverable as a matter of law and ordered defendants to respond to discovery requests regarding the manner of advertising Jay-Z concerts and revenue from those shows.[110] The court wrote, however, that “there are triable issues of fact regarding whether Jay-Z concert revenues constitute direct profits as a result of infringing live performances of Big Pimpin.’”[111] The court did not articulate those issues. Thus, the Fahmy decision simply blurs the analysis of the ultimate recoverability of concert revenue and may stand for nothing more than the discoverability of advertising and revenue information.

The Blurred Lines ruling does not provide a sufficient basis to answer the question, but the cases that have interpreted 504 (b) provide a clear roadmap for a claimant seeking to recover any stream of revenue: one must establish a causal link between, on the one hand, the revenue and, on the other hand, the infringement.

Notes

1. Williams v. Bridgeport Music Inc., Case No. CV13-06004 (C.D. Cal., January 26, 2015) (Doc. 226) (“Blurred Lines”).
2. 17 U.S.C. § 504(a) (2015).
3. Id. at (b).
4. Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 396-397 (1940).
5. Id.
6. Id. at 396.
7. Id. at 397.
8. Id. at 398.
9. Id. at 399 (quoting 17 U.S.C. §25(b) (1940)).
10. Id. at 399.
11. Id. (citing Stevens v. Glading, 58 U.S. 447 (1854)).
12. Id. (quoting Livingston v. Woodworth, 56 U.S. 546 (1853)).
13. Id. at 399-400.
14. Id. at 400 (quoting Tilghman v. Proctor, 125 U.S. 136, 146 (1888).
15. Id. at 400.
16. Id. at 401.
17. Id. at 402.
18. Id.
19. Id. at 403 (quoting Westinghouse Electric & Mfg. Company v. Wagner Electric & Mfg. Company, 225 U.S. 604 (1912)).
20. Id. at 404 (quoting Dowagiac Mfg. Company v. Minnesota Moline Plow Company, 235 U.S. 641 (1915)).
21. Id. at 405.
22. Id.
23. Id. at 407.
24. Id.
25. Id. at 408.
26. Id. at 408-409.
27. Taylor v. Meirick, 712 F.2d 1112, 1119-1120 (7th Cir. 1983).
28. Id. at 1117.
29. Id. at 1119.
30. Id. at 1121.
31. Id.
32. Id.
33. Id. at 1122.
34. Id.
35. Id.
36. Id.
37. Cream Records Inc. v. Jos. Schlitz Brewing Co., 754 F.2d 826 (9th Cir. 1985).
38. Id. at 827.
39. Id. at 828.
40. Id.
41. Id. at 829.
42. Id. at 828.
43. Id. at 829.
44. Estate of Vane v. The Fair Inc., 849 F.2d 186, 187 (5th Cir. 1988).
45. Id. at 188.
46. Id.
47. Id. (citing Shapiro Bernstein & Co. v. Remington Records Inc., 265 F.2d 263, 266-72 (2nd Cir. 1959)).
48. Id. at 188-189.
49. Id. at 189.
50. Id.
51. Id.
52. 17 U.S.C. § 504 (b).
53. Frank Music Corp. v. Metro-Goldwyn-Mayer Inc., 886 F.2d 1545, 1550 (9th Cir. 1989).
54. Id. at 1547.
55. Id. at 1550.
56. Id.
57. Id. at 1548.
58. Id.
59. Business Trends Analysts Inc. v. The Freedonia Group Inc., 887 F.2d 399, 404 (2nd Cir. 1989) (citing Abeshouse v. Ultragraphics Inc., 754 F.2d 467, 470 (2nd Cir. 1985)).
60. Walker v. Forbes Inc., 28 F.3d 409, 412 (4th Cir. 1994).
61. Id. at 410.
62. Id. at 411-412.
63. Id. at 411.
64. Id.
65. Id.
66. Rainey v. Wayne State Univ., 26 F.Supp.2d 963, 970 (E.D. Mich. 1998).
67. Id. at 965.
68. Id. at 971.
69. Id. at 971 (citing 1 Nimmer on Copyright § 14.03 [A] at 14-33 (1996)).
70. The Univ. of Colorado Foundation Inc. v. American Cyanamid Co., 196 F.3d 1366 (Fed. Cir. 1999).
71. Id. at 1375.
72. Id.
73. Id.
74. Bouchat v. Baltimore Ravens Inc., 215 F.Supp.2d 611, 613 (D. Md. 2002).
75. Id. at 614.
76. Id. at 615-616.
77. Id. at 617.
78. Id.
79. Id. at 622.
80. Bouchat v. Baltimore Ravens Football Club Incorporated, 346 F.3d 514 (4th Cir. 2003).
81. Id. at 516.
82. Id. at 520.
83. Id. (citing On Davis v. The Gap Inc., 246 F.3d 152 (2nd Cir. 2001).
84. Id. at 520-521 (quoting On Davis, 246 F.3d at 159).
85. Id. at 521 (citing Mackie v. Rieser, 296 F.3d 909 (9th Cir. 2002)).
86. Id.
87. Id. (quoting Mackie, 296 F.3d at 911).
88. Id. at 526.
89. Id.
90. Id.
91. Id. at 528.
92. Id.
93. Walker, 28 F.3d at 412.
94. Andreas v. Volkswagen of America Inc., 336 F.3d 789, 796 (8th Cir. 2003) (quoting Mackie, 296 F.3d at 915).
95. Id.
96. Id. at 791.
97. Id. at 792.
98. Id.
99. Id.
100. Id.
101. Id.
102. Id. at 795.
103. Id. at 800.
104. Id. at 795-796.
105. Id. at 796-797.
106. Id. at 796.
107. Id. at 796-797.
108. Id. at 798-799.
109. Fahmy v. Jay-Z, 835 F.Supp.2d 783 (C.D. Cal. 2011).
110. Id. at 797.
111. Id. at 794.

TIM WARNOCK is a member of Riley Warnock & Jacobson PLC. He is certified in Tennessee as a civil trial specialist by the National Board of Trial Advocacy and is a member of the American Board of Trial Advocates. He has served as chair of the Federal Practice and Sports and Entertainment Sections of the Tennessee Bar Association and has served as a member of the Steering Committee for the Tennessee Bar Association’s Leadership Law Program.