The 4th Circuit delivered a knockout punch in a copyright infringement claim against Mayweather, affirming a district court’s granting of summary judgment dismissing a songwriter’s claim for infringement damages.
Anthony Dash claimed that he wrote the composition of a song Mayweather used as a “theme song” during several appearances at WWE events and sued for infringement. Because Dash had not filed for copyright registration until after the alleged infringement, Dash was only able to seek actual damages under §504(b). The district court bifurcated the proceedings between liability and damages and Mayweather filed a motion for summary judgment that Dash was not entitled to damages. Dash responded by filing an expert report that listed four benchmark licensing fees paid to other artists for the use of their music at Wrestlemania XXIV. Based on those fees, Dash’s expert concluded that Dash “would have earned a maximal sum of $3,000 for the use of his musical composition.” Mayweather argued that Dash’s expert opinion was too speculative on which to base an award.
The 4th Circuit began by noting that “the primary measure of recovery is the extent to which the market value of the copyrighted work at the time of the infringement has been injured or destroyed by the infringement.” One measure of the fair market value is the licensing “fee the owner was entitled to charge for [the infringer’s] use” of his copyrighted work.” In order to recover, the copyright owner “must prove the existence of a causal connection between the alleged infringement and some loss of anticipated revenue.”
Dash’s expert attempted to determine what the license fee would have been by considering 4 songs that the WWE did license: 1 by the Red Hot Chilli Peppers, 1 by Fuel and 2 by Snoop Dogg. Dash’s expert concluded that, “[b]ased on these benchmarks, it is safe to conclude that [Dash] would have earned a maximal sum of $3,000 for the use of his musical composition.”
The 4th Circuit seized on Dash’s expert’s reference to the maximum amount Dash would have earned as evidence that Dash might not have earned anything. (“By referencing [Dash]’s maximal value—without any actual mention of a minimum value—[Dash’s expert] failed to satisfy this burden. Rather it appears to have concluded only that, to the extent [Dash’s work] had a market value, such value was no more than $3,000.”) The Court also concluded that the selection of benchmarks–representing licenses with well-known artists–were too removed from the unknown Dash to be reliable.
The Court then turned to Dash’e entitlement to WWE’s profits from using the work and noted that “in order to meet his initial burden under § 504(b), a plaintiff must not merely present proof of the amount of the claimed revenue streams, but must also provide “more than mere speculation as to the existence of a causal link between the infringement and the claimed revenues.” The Court noted that the causal link need to be direct–it must only be hypothetically possible. Here, Dash had stipulated that he had no evidence that the playing of his composition at Wrestlemania XXIV increased any of the WWE revenue streams. By making such stipulation, Dash admitted there was not even hypothetically possible to show the performance of his song created profits WWE would not have earned but for playing the song.
The decision is here.