Dash v. Mayweather, No. 12-1899

Decided: September 26, 2013

Holding that the Appellant Anthony Dash (“Dash”) was not entitled to damages under 17 U.S.C. § 504(b), the Fourth Circuit affirmed the district court’s grant of summary judgment in favor of Floyd Mayweather, Jr. (“Mayweather”), Mayweather Promotions, Mayweather Promotions LLC, Philthy Rich Records, Inc., and World Wrestling Entertainment, Inc. (“WWE”), (collectively “Appellees”).

In 2005, Dash composed an instrumental track, entitled “Tony Gunz Beat” (“TGB”); however, he failed to file a copyright application until sometime in 2009 and has never received revenue from TGB. In February 2008, Mayweather contracted with the WWE, agreeing to promote and perform at Wrestlemania XXIV. The contract did not address Mayweather’s entrance music. However, the WWE communicated to Mayweather at some point prior to the event that it had selected a song. Nonetheless, on the eve of the event, one of Mayweather’s associates communicated to the WWE that Mayweather would be entering to a different song, entitled “Yep.” Mayweather’s manager represented to the WWE that Mayweather owned all rights to the song and was granting the WWE rights to use it in connection with his appearance. On March 30, 2008, Mayweather appeared at Wrestlemania XXIV, entering the arena to “Yep,” which played for approximately three minutes. Over a year later, in August of 2009, Mayweather appeared on the WWE’s live weekly program, RAW. Again, “Yep” was played in connection with his appearance. Dash claims that “Yep” combines lyrics with his now-copyrighted instrumental, TGB. Therefore, the claimed infringement is alleged to have occurred after Dash composed TGB, but before his copyright registration became effective.

At the district court level, the proceedings were bifurcated with respect to liability and damages. The parties stipulated to the existence and amount of several revenue streams associated with Wrestlemania XXIV and the August 24, 2009, RAW broadcast. The parties further stipulated that Dash had adduced no evidence indicating that the playing of the song “Yep” at the two events increased any of the WWE revenue streams beyond that which would have existed had it not been played, and that Dash had adduced no evidence that the WWE received any additional revenue beyond that which would have existed had it not been played. The parties submitted partial summary judgment motions concerning Dash’s entitlement to actual and profit damages under 17 U.S.C. § 504. To prove his damages, Dash relied on a report prepared by a retained expert, Dr. Michael Einhorn. The report discussed the amount of both actual and profit damages Dash had sustained based on the alleged infringement (the  “Einhorn Report”). The Einhorn Report listed four benchmark-licensing fees paid to other artists for the use of their music at Wrestlemania XXIV. Based on those fees, the Einhorn Report concluded that Dash’s actual damages were “no more than $3,000.” After considering the Einhorn Report, the district court concluded that Dash was neither entitled to actual nor profit damages and determined that the case need not proceed to the liability phase. Subsequently, Dash moved for reconsideration. His motion was denied and this appeal followed.

On appeal, the Fourth Circuit first addressed Dash’s entitlement to actual damages. Because Dash admitted that he never commercially exploited TGB, the burden shifted to him to provide non-speculative evidence establishing a genuine dispute as to the existence of damages. As he did at the district court level, Dash relied on the Einhorn Report’s estimation of the licensing fee he might have been paid to support his actual damages claim. After reviewing the Einhorn Report in detail, the court found that the lost licensing fee estimation was too speculative, primarily because it did not establish a fair market value for TGB rather it merely established that, in the event TGB did have a market value, it was less than $3,000.

The court noted that it was taking the opportunity to aid plaintiffs and their experts going forward by noting the many deficiencies in the Einhorn Report that compelled its conclusion. Having concluded that Dash failed to establish his entitlement to actual damages, the court next addressed his claim for profit damages. Following a summary of Fourth Circuit jurisprudence on the issue, the court held that many of the revenue streams claimed by Dash had no conceivable connection to the infringement because they involved revenues that consumers and businesses paid to Appellees, or agreed to pay Appellees, prior to discovering that “Yep” would be played. With respect to the revenue streams for which a conceivable connection arguably did exist, the court held that Dash failed to provide non-speculative evidence of a causal link between the infringement and the claimed revenues. In so holding, the court relied on the parties’ stipulations that Dash adduced no evidence that the playing of “Yep” either increased any of the WWE revenue streams or that the WWE received any additional revenue as a result of playing “Yep.”

Full opinion

-W. Ryan Nichols

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