Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nunes v. Rushton

United States District Court, D. Utah

May 14, 2018

RACHEL NUNES Plaintiff,
v.
TIFFANIE RUSHTON Defendant.

          MEMORANDUM DECISION AND ORDER ON MOTIONS IN LIMINE

          Jill N. Parrish, District Judge

         Tiffanie Rushton infringed Rachel Nunes's copyright to her novel, A Bid for Love. The only issues remaining for trial are whether the infringement was willful within the meaning of 17 U.S.C. § 504(c)(1) and the amount of statutory damages to be awarded to Nunes. Before the court are eight motions to exclude evidence filed by Nunes and one motion to exclude evidence filed by Rushton. The court shall first address the standards applicable to the willfulness and statutory damages issues. The court will then address each motion in turn.

         I. LEGAL STANDARDS

         A copyright infringer may be held liable for statutory damages. 17 U.S.C. § 504(a). Ordinarily, statutory damages may be awarded “in a sum of not less than $750 or more than $30, 000.” Id. § 504(c)(1). But if the copyright owner proves that the infringement “was committed willfully, ” statuary damages may be awarded in an amount not to exceed $150, 000. Id. § 504(c)(2). Both willfulness and the amount of statutory damages are jury questions. Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 355 (1998).

         In order to show that infringement was willful, the plaintiff must prove that the defendant either knew that his or her conduct constituted copyright infringement or recklessly disregarded the possibility that his or her conduct constituted copyright infringement. See Bryant v. Media Right Prods., Inc., 603 F.3d 135, 143 (2d Cir. 2010); Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 991 (9th Cir. 2017); Yellow Pages Photos, Inc. v. Ziplocal, LP, 795 F.3d 1255, 1272 (11th Cir. 2015); 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.04[B][3][a] (Rev. Ed. 2017).

         Additionally, the jury is free to consider a number of factors when determining the amount of a statutory damage award. The Supreme Court has recognized that the statutory damages clause of the Copyright Act affords the “necessary flexibility to do justice” when it is difficult or impossible to calculate actual damages. F. W. Woolworth Co. v. Contemporary Arts, 344 U.S. 228, 232-33 (1952); see also Douglas v. Cunningham, 294 U.S. 207, 209 (1935) (reasoning that the statutory damages provision was adopted “to give the owner of a copyright some recompense for injury done him, in a case where the rules of law render difficult or impossible proof of damages or discovery of profits”). The Court further recognized that even in cases where infringement does not damage the copyright holder or enrich the infringer, a statutory award is appropriate to vindicate the policies animating the Copyright Act, including “to discourage wrongful conduct.” Wo olworth Co., 344 U.S. at 233.

         Lower courts have further enumerated factors that a jury may consider when awarding statutory damages. A district court in the First Circuit, for example, instructed a jury that it could consider, among other things:

the nature of the infringement; the defendant's purpose and intent, the profit that the defendant reaped, if any, and/or the expense that the defendant saved; the revenue lost by the plaintiff as a result of the infringement; the value of the copyright; the duration of the infringement; the defendant's continuation of infringement after notice or knowledge of copyright claims; and the need to deter this defendant and other potential infringers.

Sony BMG Music Entm't v. Tenenbaum, 660 F.3d 487, 503-04 (1st Cir. 2011). The Fourth Circuit similarly held that a jury was correctly instructed that it could consider any actual damages as well as

any evidence that the defendants have a history of copyright infringement; any evidence that the defendants are apparently impervious to either deterrence or rehabilitation; the extent of the defendant's knowledge of the copyright laws; any misleading or false statements made by the defendants; . . . and any factor which the jury believes evidences the defendants knew, had reason to know, or recklessly disregarded the fact that its conduct constituted copyright infringement.

Superior Form Builders, Inc. v. Dan Chase Taxidermy Supply Co., 74 F.3d 488, 496 (4th Cir. 1996) (alteration in original). Finally, the Second Circuit has held that when

determining the amount of statutory damages to award for copyright infringement, courts consider: (1) the infringer's state of mind; (2) the expenses saved, and profits earned, by the infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the infringer and third parties; (5) the infringer's cooperation in providing evidence concerning the value of the infringing material; and (6) the conduct and attitude of the parties.

Bryant v. Media Right Prods., Inc., 603 F.3d 135, 144 (2d Cir. 2010); see also Marshall v. Marshall, No. 08 CV 1420 LB, 2012 WL 1079550, at *26 (E.D.N.Y. Mar. 30, 2012), aff'd, 504 Fed.Appx. 20 (2d Cir. 2012) (ruling that “‘statutory damages cannot be divorced from economic reality' and ‘should bear some relationship to actual damages suffered'” (citation omitted)).

         In summary, the jury has broad discretion to consider many factors when fixing the amount of a statutory damages award, including (1) the amount of any actual damages to the copyright holder or any profits obtained by the infringer, (2) any difficulties in proving either damages or profits, (3) the infringer's state of mind, (4) the nature of and circumstances surrounding the infringement, (5) the conduct and attitude of the parties in relation to the infringement, and (6) deterrence.

         II. MOTION TO EXCLUDE SETTLEMENT OFFERS AND NEGOTIATIONS

         Pursuant to Rule 408 of the Federal Rules of Evidence, Nunes moves to exclude evidence of any settlement offers and any conduct or statements made during settlement negotiations. Rule 408 excludes offers to compromise a claim as well as conduct or statements made during compromise negotiations “either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement.” Any settlement offers made in this case fall squarely within this rule. Settlement negotiations could only be relevant to the amount of the statutory damages award. Rule 408 prohibits the use of settlement negotiations to prove the amount of statutory damages to award.

         The cases cited by Rushton to support her argument that evidence of settlement negotiations should be introduced at trial are not persuasive. First, Rushton cites Warner Bros. Inc. v. Dae Rim Trading, Inc., 877 F.2d 1120 (2d Cir. 1989). In that case, the Second Circuit noted that the defendant had offered to settle the case and held that “the overall history of the litigation” justified the district court's decision to award $100 in statutory damages. Id. at 1122, 1126. But the Second Circuit never considered Rule 408, and it appears that the parties in that case never raised it. Warner Bros. cannot be persuasive authority on a point of law it did not contemplate. Moreover, the district court in Warner Bros. decided the issue of statutory damages, not a jury. Second, Rushton cites Fortgang v. Pereiras Architects Ubiquitous LLC, No. CV163754ADSAYS, 2018 WL 1832184, at *4 (E.D.N.Y. Mar. 9, 2018). But that case only held “that Rule 408 does not bar consideration of settlement discussions in the context of determining whether attorneys' fees are appropriate under Section 505 of the Copyright Act.” Id. at *4. It says nothing about submitting evidence of settlement negotiations to a jury when determining the amount of statutory damages.

         The court, therefore, concludes that Rule 408 prohibits a jury from considering evidence of settlement offers and settlement negotiations when setting the amount of statutory damages. The court GRANTS Nunes's motion to exclude this evidence.

         III. MOTION TO EXCLUDE EVIDENCE ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.