Tevin Abeshouse v. Ultragraphics, Inc. (1985)

See Rogers v. Koons, 960 F.2d 301, 310-13 (2d Cir.1992); Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470-72 (2d Cir.1985); Szekely v. Eagle Lion Films, Inc., 242 F.2d 266, 268-69 (2d Cir.1957).

Further, while the nature of actual damages may require a court to “engage in some degree of speculation,” id. (quoting Stevens Linen Assocs., Inc. v. Mastercraft Corp., 656 F.2d 11, 14 (2d Cir.1981)), “the amount of damages may not be based on undue speculation.’ ” On Davis, 246 F.3d at 166 (quoting Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470 (2d Cir.1985)); see also Jarvis, 486 F.3d at 534 (explaining that “[e]xcessively speculative claims of damages are to be reje…

This economic incentive to infringe runs directly counter to the intent of Congress in passing 17 U.S.C. § 504 — namely to “compensate the copyright owner for losses from the infringement, and ... to prevent the infringer from unfairly benefitting from a wrongful act.” Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470 (2d Cir.1985) (quoting H.R.Rep.

This economic incentive to infringe runs directly counter to the intent of Congress in passing 17 U.S.C. § 504—namely to “compensate the copyright owner for losses from the infringement, and . . . to prevent the infringer from unfairly benefitting from a wrongful act.” Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470 (2d Cir. 1985) (quoting H.R.

See Business Trends Analysts, Inc. v. Freedonia Group, Inc., 887 F.2d 399, 407 (2d Cir.1989) ("Where there is no evidence at all allowing an assessment of the value of ["enhanced good will" or "market recognition"], establishment of the fact of enhancement will not support an award."); Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470 (2d Cir.1985). 35 The district court noted that the $25,000 award was "uncontested," and cited no record evidence to support it.

See Business Trends Analysts, Inc. v. Freedonia Group, Inc., 887 F.2d 399, 407 (2d Cir.1989) (“Where there is no evidence at all allowing an assessment of the value of [“enhanced good will” or “market recognition”], establishment of the fact of enhancement will not support an award.”); Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470 (2d Cir.1985).

"A Rule 59(e) motion 'may not be granted where to do so would undermine the jury's fact-finding role...." Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 473 (2d Cir.1985) (quoting Robinson v. Watts Detective Agency, 685 F.2d 729, 742 (1st Cir.1982), cert. denied, (1983)); Trustees of Cent.

See Business Trends Analysts, Inc. v. Freedonia Group, Inc., 887 F.2d 399, 404 (2d Cir.1989) (recognizing possibility of recovery for loss of “enhanced good will” and “market recognition”); Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 471 (2d Cir.1985) (ruling that claimed harm to “reputation” and “marketability” of copyrighted poster was “too speculative to support any award of actual damages”); Sunset Lamp Corp. v. Alsy Corp., 749 F.Supp. 520, 524-25 (S.D.N.Y.1990) (rec…

However, we see no legal barrier to such an award under Section 504(b) so long as the amount of the award is based on a factual basis rather than “undue speculation.” See Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470 (2d Cir.1985).

Such damages “are awarded to compensate the copyright owner for losses from the infringement.” Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470 (2d Cir.1985).

See Mary Ellen Enters., 68 F.3d at 1070; Abeshouse, 754 F.2d at 471; Stevens Linen, 656 F.2d at 15 ; Applied Innovations, Inc. v. Regents of the Univ. of Minn., 876 F.2d 626 , 637 (8th Cir.1989); Baldwin Cooke Co. v. Keith Clark, Inc., 420 F.Supp. 404, 408 (N.D.Ill.1976) (discussing plaintiffs lost future sales under the 1909 Copyright Act); see also 100 A.L.R.

See Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470-71 (2d Cir.1985); see also 4 Nimmer on Copyright, supra p. 6, § 14.02[A], at 14-8 (“The primary measure of recovery of actual damages is based upon the extent to which the market value of the copyrighted work, at the time of infringement, has been injured or destroyed by such infringe *922 ment.”) Although there is authority-suggesting that future losses may be considered when determining actual damages, see Mary Ellen …

Courts do “not allow speculation as to the amount of actual damages suffered.” Sunset Lamp, 749 F.Supp. at 522 (citing Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470 (2d Cir.1985)).

Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470 (2d Cir.1985).

“Once a copyright owner has shown evidence of an infringer’s gross revenues, § 504(b) places upon the infringer the burden of proving his deductible expenses.” Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470 (2d Cir.1985).

She may pursue the actual damages she has suffered plus the infringer’s additional profits; or she may elect statutory damages to be determined, within specified limits, “as the court considers just.” 17 U.S.C. §§ 504 (b)-504(c); see Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 432 , 104 S.Ct. 774,784 , 78 L.Ed.2d 574 (1984); Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 469 (2d Cir.1985).

See, e.g., 6 Patry on Copyright § 22:148; Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505 (9th Cir. 1985) (“When a copyright is infringed, all infringers are jointly and severally liable for plaintiffs' actual damages, but each defendant is severally liable for his or its own illegal profit; one defendant is not liable for the profit made by another.”); Belford, Clarke & Co. v. Scribner, 144 U.S. 488, 507 (1892) (“[D]efendants who did not participate in the prof…

But there is a longstanding exception "when such defendants act as partners or as 'practical partners.'" Nelson-Salabes, 284 F.3d at 517 (quoting Frank Music Corp. v. Metro- Goldwyn-Mayer, Inc., 772 F.2d 505, 519 (9th Cir. 1985)); see also Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 472 (2d Cir. 1985) ("Exceptions to [the] general rule may be appropriate only where the infringement was not innocent or where the defendants 'engaged in a partnership, joint venture, or simi…

Co., Inc., 807 F.2d 1110, 1116 (2d Cir.1986) (overturning the district court’s decision and holding that the defendants were jointly and severally liable for statutory damages as “the infringement flowed from [their] joint action”); Abeshouse v. Ultragraphics Inc., 754 F.2d 467, 472 (2d Cir.1985) (holding that the defendants, a printer and distributor of an infringing poster, were jointly and severally liable for actual damages).

And in On Davis , the United States Court of Appeals for the Second Circuit counseled that the amount of damages awarded as fair market value “may not be based on ‘undue speculation.’ ” On Davis, 246 F.3d at 166 (quoting Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470 (2d Cir.1985)).

Fitzgerald Publishing Co. v. Baylor Publishing Co., 807 F.2d 1110, 1116 (2d Cir.1986) (statutory damages); Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 472 (2d Cir.1985) (actual damages).

E.g., Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470 (2d Cir.1985) (addressing 17 U.S.C. § 504 (b)): Because Pinnacle has not based its briefing on the applicable standard, the court directs that it file a supplemental brief that analyzes the evidence adduced through Mary Beth Loekwood-Eng and Carl Peshel under the causation and amount of damage standards applied in copyright infringement actions.

As Judge Feinberg noted in Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470 (2d Cir.1985), an award made pursuant to § 504 must not be based upon undue speculation and must not entail the double counting of profits and damages expressly barred by that provision.

See 17 U.S.C. § 504 (b); Taylor, 712 F.2d at 1120 ; Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 472 (2d Cir.1985).

In contrast, many courts have discussed the importance of the Rule 50(b) requirement that a directed verdict motion must preceed a motion for JNOV, e.g., Lifshitz v. Walter Drake & Sons, Inc., 806 F.2d 1426, 1429 (9th Cir. 1986), and the concommitant impropriety of the use of Rule 59(e) to undermine a jury’s fact-finding role, see Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 473 (2d Cir. 1985); Robinson v. Watts Detective Agency, 685 F.2d 729, 742 (1st Cir.1982), cert. de…

Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 472 (2d Cir.1985) 8.

In Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 471 (2d Cir.1985), Chief Judge Feinberg concluded that forcing a distributor to disgorge the profits from its sales in addition to reimbursing the plaintiff manufacturer for the profits it would have earned “contain[ed] no element of double-counting.” The manufacturer “could not have made the [sales which the distributor had made] and therefore cannot claim any lost profits on them.” Id.

See Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470-71 (2d Cir.1985) (double recovery, as prohibited by § 504(b), “may occur when an infringing seller has to disgorge profits on sales that a copyright holder might have made and for which he may therefore claim damages in the form of lost profits”); Manufacturers Technologies, Inc. v. Cams, Inc., 728 F.Supp. 75, 83-84 (D.Conn.1989) (on sales where plaintiff and defendant competed directly, plaintiff may not recover both d…

See Abeshouse v. Ultragraphics, Inc., 754 F.2d 467 , 473 (2d Cir.1985); 5A Moore's Federal Practice 50.08, at 50-83 to 50-86 (2d ed. 1992); 9 Wright & Miller § 2537, at 598.

See Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 473 (2d Cir. 1985); 5A Moore’s Federal Practice 50.08, at 50-83 to 50-86 (2d ed. 1992); 9 Wright & Miller § 2537, at 598.

See Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 469-71 (2d Cir.1985). 4 ' Walter Pfanenstiel testified that the $20,-000 figure represented the architectural fee he would have charged “to build the two buildings here in Kansas City and also to design and draw a third building which was not built.” The figure was “based on the average of the units we did there, how much we had spent on the ones we had done in Dallas, and the ones we had done in St.

See, e.g., Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470-71 (2d Cir.1985); Taylor v. Meirick, 712 F.2d 1112, 1120 (7th Cir.1983).

See also Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 473 (2d Cir.1985) (holding that failure to timely move for a directed verdict precludes a later grant of judgment notwithstanding the verdict); Hubbard v. White, 755 F.2d 692, 695 (8th Cir.), cert. denied, 474 U.S. 834 , 106 S.Ct. 107 , 88 L.Ed.2d 87 (1985) (holding that plaintiff’s failure to move for directed verdict at the close of the evidence precluded a later grant of judgment n.o.v.); Rawls v. Daughters of Chari…

See Abehouse v. Ultragraphics, Inc., 754 F.2d 467 , 473 (2d Cir.1985); 5A Moore’s Federal Practice 1150.08, at 50-74 to 50-75 (2d ed.1986); 9 C.

See Abehouse v. Ultragraphics, Inc., 754 F.2d 467 , 473 (2d Cir.1985); 5A Moore's Federal Practice p 50.08, at 50-74 to 50-75 (2d ed.1986); 9 C.

See Abeshouse, 754 F.2d at 472 ; MCA, Inc. v. Wilson, 677 F.2d 180 (2d Cir.1981).

See Abeshouse, 754 F.2d at 472 ; MCA, Inc. v. Wilson, 677 F.2d 180 (2d Cir.1981).

See also Abeshouse v. Ultragraphics, Inc., 754 F.2d 467 (2d Cir.1985) (analyzing the recoverability of damages and profits under the 1976 Act).

See Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470 (2d Cir. 1985).

See Peaks Prods., Inc. v. Publications Int’l, 996 F.2d 1366 , 1380 (2d Cir. 1993) (permitting plaintiff to elect statutory remedy where actual damages were not ascertainable); see also Aleshouse v. Ultragraphics, Inc., 754 F.2d 467 , 469 (2d Cir. 1985); Engel v. Wild Oats, Inc., 644 F. Supp. 1089, 1091 (S.D.N.Y. 1986).

Corp. v. Kirkwood, 63 F.Supp.2d 420, 427-28 (S.D.N.Y.1999) (declining to award attorney’s fees where defendant was not a rip-off artist and was entirely responsible and cooperative throughout the course of litigation); See also Abeshouse v. Ultragraphics, Inc., 754 F.2d 467 (2d Cir.1985) (declining to award attorney’s fees where infringing party gained little profit from the infringing action and made many unsuccessful attempts to reasonably settle the matter).

See Hawkes v. Ayers, 537 F.2d 836, 837 (5th Cir.1976) (“It is well-settled ... that the Seventh Amendment prohibits the utilization of an additur, at least where the amount of damages is in dispute”) (citing Dimick v. Schiedt, 293 U.S. 474, 486-88 , 55 S.Ct. 296 , 79 L.Ed. 603 (1935)); see also Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 473 (2d Cir.1985) (“A Rule 59(e) motion may not be granted where to do so would undermine the jury’s fact-finding role”) (citation and …

Odegard, 963 F.Supp. at 1340 ; see also Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 472 (2d Cir.1985).

See also Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 473 (2d Cir.1985) (holding that failure to timely move for a directed verdict precludes a later grant of judgment notwithstanding the verdict); Hubbard v. White, 755 F.2d 692, 695 (8th Cir.), cert. denied, 474 U.S. 834 , 106 S.Ct. 107 , 88 L.Ed.2d 87 (1985) (holding that plaintiff’s failure to move for directed verdict at the close of the evidence precluded a later grant of judgment n.o.v.); Rawls v. Daughters of Chari…

See Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470 (2d Cir.1985) (citing and quoting legislative history).

Arthur Anderson & Co. v. Manufacturer’s Hanover Trust Co., 479 U.S. 1066 , 107 S.Ct. 952 , 93 L.Ed.2d 1001 (1987). (1) Damages for Copyright Infringement The 1976 Copyright Act (“the Copyright Act” or “the Act”) allows a prevailing plaintiff to recover “any profits of the infringer that are attributable to the infringement____” 17 U.S.C. § 504 (b). 3 The Act also provides that “[i]n establishing the infringer’s profits, the copyright owner is required to present proof only o…

Compare Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 472 (2d Cir.1985).