Stem Cell Photographer’s $1.6 Million Copyright Infringement Jury Verdict Upheld

Andrew Leonard photographs stem cells using an electron microscope.  Due to the technical skill required, he is one of just a handful of such photographers.  Leonard pays a scientific research institution to use its electron microscope.  He obtains cell samples from doctors, scientists and researchers.  Leonard takes the images in black and white, then uses his artistic judgment to add color to the images. 

Stemtech uses distributors to sell the nutritional supplements it formulates.  Stemtech distributors sign a contract and must comply with Stemtech’s policies and procedures manual.  Leonard licensed two of his stem cell images to Stemtech for limited use.  Stemtech failed to pay Leonard the agreed upon licensing fee and exceeded the scope of the license by using the images without a license in its promotional materials.  Further, Stemtech allowed some of its distributors to use Leonard’s images on their websites.  After Stemtech and its distributors refused to pay Leonard for the unauthorized use of his images, Leonard sued Stemtech and its distributors for copyright infringement.  The jury awarded Leonard a $1.6 million verdict against Stemtech on Leonard’s direct, vicarious and contributory infringement claims.  The issues on appeal to the Third Circuit were whether the district court should have granted Stemtech’s motion for a new trial on contributory and vicarious liability and damages and whether Leonard should have received prejudgment interest and infringer’s profits.

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WWE Event Copyright Infringement Damages Claims Smacked Down

This case illustrates the difficulty in proving actual damages and profits damages in copyright infringement cases.  Anthony Lawrence Dash composed “Tony Gunz Beat,” (TGB), an instrumental music track.  Floyd Mayweather, a famous boxer, co-wrote lyrics to TGB and renamed the song “Yep.”  Mayweather used “Yep” as his introductory music for two World Wrestling Entertainment, Inc. (WWE) broadcast events he appeared in.  Dash sued Mayweather, WWE and others for copyright infringement.

As Dash did not register his copyright until after the alleged infringement occurred, he could not recover statutory damages and was limited to proving his actual damages and the infringers’ profits.  The parties requested the district court to rule on whether Dash was entitled to damages before determining whether the defendants were liable for copyright infringement.  The defendants moved for summary judgment on both damages issues.  The district court ruled that Dash was not entitled to receive either actual damages or profits damages.  Dash did not present evidence that TGB had a market value, precluding actual damages.  Dash did not present evidence of a causal link between the playing of his song and an increase in profits received by the defendants, preventing profits damages.  The district court then dismissed the case entirely, including the liability portion of the case.  The Fourth Circuit Court of Appeals affirmed the district court’s decision. 

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Copyright Owner Out-Hustles Flynt

When Ohio newscaster Catherine Bosley (aka Catherine Balsley) entered a wet t-shirt contest and danced nude at a bar while on vacation in Florida in March 2003, she didn’t realize that an amateur photographer was taking photographs of her.  Bosley lost her job as a news anchor when the amateur photographer posted photos of Bosley on the photographer’s website.  Bosley and her husband acquired all rights to the photos from the photographer and registered the copyrights with the Copyright Office in August 2004.

LFP, Inc. (aka Larry Flynt Publications) publishes Hustler magazine, which “contains graphic images and stories about sex.”  “Hot News Babes” is a recurring item in the magazine.  A Hustler reader nominated Bosley as a “hot news babe” in August 2005.  The reader did not provide Hustler with photos of Bosley, but told Hustler that it could find photos on the Internet.  One of the photos Hustler obtained online was a photo for which Bosley and her husband owned the copyright.  The photo included a visual copyright notice.  Hustler’s editors knew that the photo was copyrighted, but published the photo in the February 2006 edition without locating the copyright owner and without obtaining a license.  Hustler’s attorney advised Hustler that it could publish the photo as a fair use.  Bosley found out about the publication and filed suit against LFP for copyright infringement and other claims in February 2008.

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