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Jordan v. Time, Inc.

United States Court of Appeals for the Eleventh Circuit

April 25, 1997, Decided

Nos. 95-5432, 96-4414

Opinion

 [***1571]   [*103]  PER CURIAM

Appellant Pat Jordan filed a copyright infringement suit against appellee Time, Incorporated ("Time") when Sports Illustrated reprinted an article authored by Jordan without prior consent. Time made two offers of judgment, Fed.R.Civ.P. 68, which Jordan rejected. After Time admitted liability, the district court conducted a jury trial solely on the issue of damages. The jury returned a verdict awarding Jordan actual damages, but rejecting Jordan's claim for a portion of Time's profits and his claim that the infringement was willful. Following the jury verdict, Jordan elected to pursue statutory damages. 17 U.S.C. § 504(c)(1) (1994). The district court awarded damages to Jordan. Both sides then filed motions for attorneys' fees and costs. The district court denied the motions. On appeal,  [**2]  Jordan argues the jury instructions on the issue of damages were erroneous. Time cross appeals from the district court's denial of its motion for attorneys' fees and costs. Having timely elected to receive statutory damages from the court, Jordan is precluded from appealing any question related to actual damages. As to Time's cross appeal, because Fed.R.Civ.P. 68 requires a district court to impose costs, we reverse the district court's order denying Time's motion and remand the matter to the district court for further proceedings.

Pat Jordan is a professional author who has written over forty articles for Sports Illustrated magazine ("SI"). In 1971, Jordan authored an article about a former professional baseball pitcher named Robert "Bo" Belinsky, which SI published in its March 6, 1972, edition. The article was published pursuant to an agreement entered between Jordan and SI. Under the terms of the agreement, Jordan would submit certain articles to SI and SI would have first publication rights. Following SI's first publication of the Belinsky article, Jordan was the registered owner of the existing copyrights to the article.

In 1993, SI celebrating its 40th anniversary, reprinted [**3]  the article without obtaining Jordan's prior consent or offering to purchase republication rights. Based on SI's allegedly unlawful republication of Jordan's  [*104]  article, Jordan filed a copyright infringement suit against Time, the publisher of SI. Pursuant to Rule 68 of the Federal Rules of Civil Procedure, Time made an offer of judgment to Jordan in the amount of $ 15,000.00, plus attorneys' fees and costs, if any. Subsequently, Time increased its offer of judgment to $ 20,000.00. Jordan rejected both offers.

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111 F.3d 102 *; 1997 U.S. App. LEXIS 8600 **; 42 U.S.P.Q.2D (BNA) 1570 ***; Copy. L. Rep. (CCH) P27,626; 25 Media L. Rep. 1636; 37 Fed. R. Serv. 3d (Callaghan) 771; 10 Fla. L. Weekly Fed. C 845

Pat JORDAN, Plaintiff-Appellant, v. TIME, INCORPORATED, Defendant-Appellee. Pat JORDAN, Plaintiff-Appellee, v. TIME, INCORPORATED, Defendant-Appellant.

Prior History:  [**1]  Appeals from the United States District Court for the Southern District of Florida. (No. 94-6509-CIV). Federico A. Moreno, Judge.

Disposition: Final judgment AFFIRMED. Order denying Time's motion for costs REVERSED. Case REMANDED to allow the district court to calculate the amount of costs (including attorneys fees).

CORE TERMS

district court, costs, statutory damages, attorney's fees, actual damage, elected, infringement, offers, damages, final judgment, cross appeal, profits

Copyright Law, Damages, Types of Damages, Compensatory Damages, Remedies, General Overview, Statutory Damages, Civil Procedure, Costs & Attorney Fees, Settlements, Offers of Judgment, Time Limitations, Appeals, Standards of Review, Clearly Erroneous Review, De Novo Review, Costs & Attorney Fees