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Media Alerts - Dash v. Mayweather - Fourth Circuit
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November 13, 2013
  Dash v. Mayweather - Fourth Circuit
Headline: Boxer Floyd Mayweather Dodges Rap Beat Composer's Copyright Suit

Area of Law: Copyright

Issue Presented: Whether a musical track's composer is entitled to damages for copyright infringement when expert testimony does not establish what a first-time artist would have been paid for the work or to what degree it contributed to the alleged infringer's profits.

Brief Summary: Anthony Dash, a relatively unknown composer, sued Floyd Mayweather, a well-known boxer, and the WWE for copyright infringement. Dash claimed Mayweather performed at two WWE events to a song which contained an original work by Dash. The district court granted summary judgment and the United States Court of Appeals for the Fourth Circuit affirmed, finding Dash failed to establish a claim for actual damages and profit damages. Because the economic expert testimony could not establish a comparable licensing fee to which Dash would be entitled, there was no basis for determining actual damages. Furthermore, there was no conceivable connection between the alleged infringement and the appellees' revenue streams.

Extended Summary: Composer Anthony Dash created an instrumental track in 2005 titled "Tony Gunz Beat" ("TGB"). To date, he has not received any revenue from TGB or from any other musical composition. In 2008 and 2009, a song titled "Yep" was played at two events that Mayweather hosted -- Wrestlemania XXIV in February 7, 2008 and WWE Raw in August 19, 2009. Floyd Mayweather, a professional boxer, and Corey Harris wrote "Yep," but Dash claimed the song contained the TGB that he composed. Mayweather requested the song be played as his entrance music at both events. The song played for about three minutes at each event. Although Dash had not filed a copyright application until "sometime in 2009," and he only received his Certificate of Registration after both events occurred, he sued Mayweather and WWE for copyright infringement, seeking injunctive relief, actual damages, and profit damages from the two WWE events.

To establish his damages, Dash filed a report by Dr. Michael Einhorn (the "Einhorn Report"), which explained Dash's history as an artist and the importance of music to the WWE. The Einhorn Report presented four benchmark licensing fees, and concluded Dash would have been entitled to no more than $3,000 in actual damages. For profit damages, Einhorn evaluated both WWE and Mayweather's respective profit streams from the event, and compared this to the three minutes in which "Yep" was played. Einhorn concluded that $541,521 of the WWE's and $480,705 of Mayweather's net profits were attributable to the infringing use of TGB. Einhorn did not calculate damages from the 2009 WWE Raw event due to a "lack of sufficient information."

The district court granted the motion for summary judgment in May 2009. The court found that Dash had not shown a causal connection between the playing of "Yep" and increased revenue to the defendants beyond what they would have received without playing the song. Furthermore, Dash was not entitled to actual damages, because Dash had not shown that TGB had a market value.

The United States Court of Appeals for the Fourth Circuit first addressed whether Dash was entitled to actual damages as a result of the alleged infringement under § 504(b). To determine actual damages, the court may look to lost revenue or the fair market value of the licensing fee a composer would have been entitled to. Either way, the copyright holder must show a causal connection between the alleged infringement and some loss of anticipated revenue. This cannot be based on "undue speculation" but instead, "sufficient, concrete evidence to indicate an actual value of his beat." The test is, "what a willing buyer would have been reasonably required to pay to a willing seller for a plaintiff's work," not what the owner would have charged, or what the infringer might have been willing to pay.

The Fourth Circuit held that Dash was not entitled to actual damages. Not only had Dash never "commercially exploited TGB" (based on his tax returns), but Dash had not shown any other record of selling one of his beats. Furthermore, Dash was unable to show damages because Einhorn's report had only presented benchmark licensing fees paid to well-known artists, such as the Red Hot Chili Peppers, Snoop Dogg, and Fuel. These artists were "far more established" than Dash, Mayweather, or Harris, making them an inappropriate comparison. Therefore, Dash could not show that his beat had a fair market value at the time it was played. The court noted that although Dash had received some acclaim for his work in the past--producing music for two video games and a nomination in 2009 for Producer of the Year at the South Carolina Music Awards - this was too speculative unless Dash could show that he had actually been paid for his work.

The court clarified, however, that first-time artists can defeat a motion for summary judgment with evidence of licensing fees paid to artists for "comparable uses of comparable works." An expert's affidavit can establish this, but only if it describes both "the factual basis and the process of reasoning which makes the conclusion viable." The court noted that Einhorn omitted this process of reasoning and simply asserted that Dash "would have earned a maximal sum of $3,000 for use of his musical composition." A report would have to: explain how those benchmarks were chosen; give an explanation for any differences between these benchmarks and how this factored into the analysis; and "perhaps most importantly," for a "derivate" work like "Yep," explain how much the alleged infringer's lyrics and singing added to the song's value.

Dash also failed to state a case for profit damages. The Fourth Circuit concluded that Dash had failed to state a "conceivable connection" between the defendants' revenue streams and the alleged infringement. The Fourth Circuit found that Dash failed to show a conceivable connection between infringement and revenue, because all of the revenue streams had been paid to the defendants by the time Mayweather insisted on playing "Yep" during his performance. Furthermore, the Fourth Circuit concluded that it "defies credulity that a consumer would purchase home videos of Wrestlemania XXIV simply to hear 'Yep' played when Mayweather entered the ring or watch the August 24, 2009, RAW broadcast in hopes of hearing the song played again."

Even with respect to the revenue streams for which a conceivable connection might exist, the Fourth Circuit concluded that Dash did not present evidence to show a causal link between the infringement and the claimed revenues. Dash stipulated that he had no evidence that the playing of 'Yep' at Wrestlemania XXIV or the August 24, 2009 RAW show increased any of the WWE revenue streams. Similarly, Dash had no evidence that the playing of Yep increased Mayweather's revenue.

Panel: Circuit Judges Davis and Thacker; Judge Mark Davis (E.D. Va., sitting by designation)

Date of Issued Opinion: 09/26/2013

Docket Number: No. 12-1899

Case Alert Author: Caleb Karpay

Counsel: William Angus McKinnon, MCGOWAN, HOOD & FELDER, LLC, Rock Hill, South Carolina, for Appellant. Mark G. Tratos, GREENBERG TRAURIG, Las Vegas, Nevada; Jerry S. McDevitt, K&L GATES, LLP, Pittsburgh, Pennsylvania, for Appellees. ON BRIEF: John G. Felder, Jr., MCGOWAN, HOOD & FELDER, LLC, Columbia, South Carolina; Thomas L. Moses, MONAHAN & MOSES, LLC, Greenville, South Carolina, for Appellant. Curtis B. Krasik, K&L GATES, LLP, Pittsburgh, Pennsylvania, Joshua W. Dixon, K&L GATES, LLP, Charleston, South Carolina, for Appellee World Wrestling Entertainment, Inc.; Bethany Rabe, GREENBERG TRAURIG, Las Vegas, Nevada, P. Benjamin Zuckerman, BUCKINGHAM, DOOLITTLE & BURROUGHS, Boca Raton, Florida, for Appellees Floyd Mayweather, Jr., Mayweather Promotions, Mayweather Promotions LLC, and Philthy Rich Records Inc.

Author of Opinion: Davis, J. (E.D. Va.)

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/13/2013 10:29 AM     4th Circuit  

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