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Despite 17 U.S.C.S. § 504(b)'s presumption, in copyright infringement cases, that the recoverable profits attributable to the infringement are equal to the infringer's gross revenues, the statute does not exempt the copyright plaintiff from the requirement of Fed. R. Civ. P. 56 that he respond to a properly supported motion for summary judgment by setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). Should the plaintiff fail so to respond -- whether that failure is due to the absence of any conceivable connection between the infringement and the claimed revenues, or instead simply due to the plaintiff's inability to muster nonspeculative evidence in support of the alleged causal link -- then summary judgment may properly be awarded to the infringer with respect to part or all of the contested revenues.
The National Football League ("NFL") announced that one of its teams, the Cleveland Browns, would shortly be moving to Baltimore. The team was to leave its entire Browns identity in Cleveland, and thus would need a new name and logo when it moved to its new Maryland home. Bouchat, a Baltimore security guard and amateur artist, became interested in the new team, and he began drawing logo designs based on the various names that the team was considering, including the name "Ravens."Bouchat created a drawing of a winged shield (the "Shield Drawing") as a "Ravens" logo. The Baltimore team adopted the name "Ravens." Bouchat sent the Shield Drawing via fax to the Maryland Stadium Authority, and asked that if the Ravens used the Shield Drawing, they send him a letter of recognition and an autographed helmet. Bouchat’s Shield Drawing was mistakenly used by National Football League Properties, Inc. ("NFLP") in NFLP's production of the Ravens' new logo, the "Flying B." Subsequently. Bouchat filed suit alleging that the Ravens and NFLP (collectively, the “Defendants”) had infringed his copyright on the Shield Drawing and on several other drawings, and seeking ten million dollars in damages. In his Complaint, Bouchat contended that some portion of essentially all of the Defendants' revenues was attributable to the infringing use of Bouchat's artwork. To satisfy his initial burden under § 504(b), Bouchat presented evidence of the gross receipts from all NFLP and Ravens activities. The district court, however, awarded partial summary judgment to the Defendants with respect to all revenues derived from sources other than sales of merchandise bearing the Flying B logo, and royalties obtained from licensees who sold such merchandise (collectively, the "Merchandise Revenues"). A jury found that Bouchat was not entitled to damages. Bouchat appealed, arguing that the district court erred in awarding partial summary judgment to the defendants with respect to certain portions of the defendants' revenues. In particular, Bouchat asserted that the court failed to give him the benefit of the § 504 statutory presumption that an infringer's revenues were entirely attributable to the infringement.
Did the district court err in awarding partial summary judgment to the defendants with respect to certain portions of the defendants' revenues?
The appellate court held summary judgment was properly used to exclude revenue sources which either had no conceivable connection to the infringement, or where, despite the existence of a conceivable connection, only speculation was offered to show a causal link between the revenue source and the infringement, despite 17 U.S.C.S. § 504(b)'s presumption that revenues were derived from an infringement. According to the Court, there was no conceivable connection between the infringement and revenues from minimum guarantee shortfalls and free merchandise, two income sources from licensees selling official team merchandise, as those sources were set by contract. As to other income sources, the artist offered only speculative evidence of a connection between them and the infringement, and did not respond to the team's summary judgment motions, so summary judgment excluding them was proper. The jury was correctly instructed that the team had to show, as to income sources not excluded, that the infringement did not contribute to them.