In Dash v. Mayweather, No. 3:10-cv-01036-JFA (D. S.C. May 11, 2012), the U.S. District Court for the District of South Carolina dismissed a copyright owner’s copyright infringement claims against World Wrestling Entertainment, Inc. (“WWE”) and other parties arising from the unauthorized playing of a recording of the plaintiff’s song “Yep” at two live WWE events. The court’s opinion suggests that the plaintiff did not register his copyright in the song until significantly after the time of the alleged infringement, and therefore, pursuant to 17 U.S.C. § 412, was not entitled to pursue statutory damages. Accordingly, the plaintiff asked the court to award as damages the profits of the infringer and actual damages. The court, however, found no basis to award damages under either of those theories.
17 U.S.C. § 504(b) permits a copyright owner “to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.” Section 504(b) further provides that–
In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
For purposes of the statute, the U.S. Court of Appeals for the Fourth Circuit has interpreted “gross revenue” to refer only to revenue “reasonably related to the infringement.” Bonner v. Dawson, 404 F.3d 290, 294 (4th Cir. 2005). In the instant case, the court observed that the plaintiff stipulated “that playing ‘Yep’ did not increase the revenues of the Wrestlemania or RAW programs beyond what they would have otherwise garner.” Because the plaintiff “failed to present any evidence demonstrating a causal link between the alleged infringement and the enhancement of a revenue stream at the WWE events in question,” the court held that he was not entitled to an award of the alleged infringer’s profits.
The court also found that the plaintiff was not entitled to actual damages because he “only offered speculation as to the value of the song.” In particular, the plaintiff presented evidence as to amounts paid by WWE to other, much better known entertainers, who the court found were not similarly situated to the plaintiff. The court also pointed out that the plaintiff had not reported any income from his songs on his tax returns and did not offer any other proof of sales of his songs.