PETITION FOR WRIT OF CERTIORARI

Transcription

1 No. In The Supreme Court of the United States ANTHONY LAWRENCE DASH, Petitioner, v. FLOYD MAYWEATHER, JR., an individual; MAYWEATHER PROMOTIONS; MAYWEATHER PROMOTIONS LLC, a/k/a Mayweather Promtions LLC; PHILTHY RICH RECORDS INC.; WORLD WRESTLING ENTERTAINMENT INC., Respondents ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PETITION FOR WRIT OF CERTIORARI John G. Felder, Jr. William A. McKinnon Counsel of Record MCGOWAN, HOOD & FELDER, LLC MCGOWAN, HOOD & FELDER, LLC 1539 Health Care Drive 1517 Hampton Street Rock Hill, South Carolina Columbia, South Carolina (803) (803) Counsel for Petitioner Counsel for Petitioner Thomas L. Moses SOUTHEAST IP GROUP, LLC 13-B West Washington Street Greenville, South Carolina (864) Counsel for Petitioner Dated: January 21, 2014 THE LEX GROUP DC 1825 K Street, N.W. Suite 103 Washington, D.C (202) (800) Fax: (202)

2 i QUESTIONS PRESENTED 1. Whether a plaintiff in a copyright case must show that the inclusion of his protected work in a larger work enhanced or increased the profits of the infringer, in order to be entitled to profit damages, when the statutory language requires only evidence of the infringer s gross profits. 2. Whether the evidence necessary to prove the value of a work under the Copyright Act has been misconstrued so as to prohibit new artists from ever being able to demonstrate the value of their work for the purpose of being awarded actual damages.

3 ii PARTIES TO THE PROCEEDING The named parties to the proceeding in the Fourth Circuit were Petitioner Anthony Dash, and Respondents Floyd Mayweather, Jr., as an individual; Mayweather Promotions; Mayweather Promotions LLC, a/k/a Mayweather Promotions LLC; Philthy Rich Records Inc., and World Wrestling Entertainment Inc. RULE 29.6 CORPORATE DISCLOSURE STATEMENT Petitioner has no parent company and is not a publically traded company.

4 iii TABLE OF CONTENTS Page QUESTIONS PRESENTED... i PARTIES TO THE PROCEEDING... ii RULE 29.6 CORPORATE DISCLOSURE STATEMENT... ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES... v OPINIONS BELOW... 1 JURISDICTION... 1 RELEVANT STATUTORY PROVISION... 1 STATEMENT... 2 A. Facts Giving Rise To The Case... 4 B. District Court Proceeding... 5 C. Fourth Circuit Proceeding... 7 REASONS FOR GRANTING THE PETITION... 8 A. THE CIRCUIT CONFLICT REGARDING THE COPYRIGHT ACT S CAUSAL CONNECTION REQUIREMENT IS CLEAR... 8

5 iv B. THE FOURTH CIRCUIT S INTERPRETATION OF THE COPYRIGHT ACT ESTABLISHES AN UNACCEPTABLE BURDEN FOR DEMONSTRATING VALUE FOR NEW ARTISTS SEEKING TO STOP COPYRIGHT INFRINGEMENT CONCLUSION APPENDIX: Published Opinion of The United States Court of Appeals for The Fourth Circuit entered September 26, a Order of The United States District Court for The District of South Carolina Re: Granting Defendants Motions for Summary Judgment entered May 11, a Order of The United States Court of Appeals for The Fourth Circuit Re: Denying Appellant s Petition for Panel Rehearing and Rehearing En Banc entered October 22, a

6 v TABLE OF AUTHORITIES Page(s) CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) Bonner v. Dawson, 404 F.3d 290 (4th Cir. 2005)... 9, 14, 15 Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514 (4th Cir. 2003)... 15, 18 Fitzgerald Publ g Co., Inc. v. Baylor Publ g Co., Inc., 807 F.2d 1110 (2d Cir. 1986) Frank Music Corp. v. Metro-Goldwyn-Mayer, 772 F.2d 505 (9th Cir. 1985) Frank Music Corp. v. Metro-Goldwyn-Mayer, 886 F.2d 1549 (9th Cir. 1989) Mackie v. Rieser, 296 F.3d 909 (9th Cir. 2002) Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986) On Davis v. The Gap, Inc., 246 F.3d 152 (2d Cir. 2001)... 11, 12, 17, 18

7 vi Taylor v. Meirick, 712 F.2d 1112 (7th Cir. 1983)... 12, 13 United States v. Diebold, Inc., 369 U.S. 654 (1962) Wood v. Houghton Mifflin, 589 F. Supp. 2d 1230 (D. Colo. 2008) STATUTES 17 U.S.C. 101 et seq U.S.C passim 17 U.S.C. 504(b)... passim 28 U.S.C. 1254(1)... 1

8 1 PETITION FOR A WRIT OF CERTIORARI Anthony Dash, Petitioner, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit in this case. OPINIONS BELOW The Fourth Circuit s opinion is reported at 731 F.3d 303 (4th Cir. 2013). App. 1a. The order of United States District Court for the District of South Carolina, Columbia Division, is unreported. App. 61a- 71a. JURISDICTION The Fourth Circuit entered the decision on September 26, On October 10, 2013, Petitioner filed a timely request for panel rehearing and rehearing en banc. The petitions for panel rehearing and rehearing en banc were denied by order dated October 22, This Court has jurisdiction under 28 U.S.C. 1254(1). RELEVANT STATUTORY PROVISION Copyright Act, 17 U.S.C. 504 (a) In General. Except as otherwise provided by this title, an infringer of copyright is liable for either (1) the copyright owner s actual damages and any additional profits of the

9 2 infringer, as provided by subsection (b); or (2) statutory damages, as provided by subsection (c). (b) Actual Damages and Profits. The copyright owner is entitled 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. 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..... STATEMENT At issue in this case are the interpretations of profit and actual damages under Title 17, United States Code Section 504, the Copyright Act. Congress passed this law for the express purpose of broadly protecting the creative process and provided a statutory scheme to guard against infringement. Profit damages, as outlined in 504(b), are a key component of the statutory scheme and serve as a vital deterrent against infringement by establishing

10 3 significant monetary consequences. Without the threat of profit damages, there is no real incentive to negotiate licensing agreements; since an infringer would only be liable for actual damages which would be the value of the licensing fee the infringer should have paid. Section 504(b) permits recovery of any profits... attributable to the infringement. 17 U.S.C. 504(b). To facilitate the recovery of profit damages, there is a burden shifting provision in 504. Id. [T]he copyright owner is required to present proof only of the infringer s gross revenue and then the defendant must respond with the elements of profit attributable to factors other than the copyrighted work. Id. (emphasis added). This scheme not only provides a disincentive for infringement, but also recognizes that evidence of attributable profits garnered from infringement will be solely in the possession of the infringer. The Fourth Circuit has misconstrued the purpose of 504(b) s profit damages by requiring Petitioner, whose composition was used without permission in a pay-per-view broadcast at a large spectator event, to prove that additional sales were derived solely from the illegal infringement of his work. The Fourth Circuit s opinion has outlined a rule never statutorily intended by Congress and has created a split amongst the circuits on the issue of evidence required to prove a causal connection. The evidence demanded by the Fourth Circuit s opinion to demonstrate profit damages is unobtainable. Large spectator events, like Wrestlemania XXIV, consist of several moving parts such as the talent,

11 4 costumes, music, promotions, and security. A ticket price to a spectator event is an all-inclusive figure representing an accounting of all costs, often budgeted long before every contract has been formed or signed by each party. Requiring a plaintiff to prove his stolen composition increased ticket sales by a specific amount before he can recover profit damages demands evidence that is unobtainable and negates the profit damages statutory provision. Further, the Fourth Circuit's opinion muddles 504(b) s actual damages provision, requiring a precision in valuing musical works that new artists, who have not sold their work commercially, can never meet. As a particularly specialized and intricate body of law, the interpretation of the Copyright Act must be based on a national standard to protect the interest of all holders under the same fair and equitable requirements regardless of one s geographical location, especially as this country continues to operate in a globalized market dependent on intellectual property. The Fourth Circuit s decision disregards profit damages and precludes aggrieved parties from the recourse intended by the Act. A. Facts Giving Rise To The Case In 2005, Petitioner composed a music track entitled Tony Gunz Beat ( TGB ). He filed a copyright application for his composition with the United States Copyright Office in Petitioner received an effective date of Registration for TGB on October 13, 2009.

12 5 On February 7, 2008, Floyd Mayweather, a famous professional boxer, entered into a contract with World Wrestling Entertainment ( WWE ) to promote Wrestlemania XXIV, a live WWE professional wrestling pay-per-view event. Wrestlemania is an annual event and tickets were sold out before Mayweather and WWE executed their contract. The night before Wrestlemania XXIV, one of Mayweather s associates informed WWE that Mayweather would be entering the arena to a song entitled Yep, instead of the music WWE had selected. Yep is Petitioner s composition TGB with lyrics added by Mayweather. On March 30, 2008, Mayweather appeared at Wrestlemania XXIV, entering to the song Yep. On August 24, 2009, Mayweather again used the song Yep when he made an appearance as a live guest host on RAW, a live weekly program produced by the WWE. At no time did either Mayweather or WWE seek or obtain Petitioner s permission to use his composition. B. District Court Proceeding On April 26, 2010, Petitioner filed suit against Mayweather, Mayweather Promotions; Mayweather Promotions LLC, a/k/a Mayweather Promotions LLC; Philthy Rich Records Inc., and WWE (collectively Respondents ) in the district court, for copyright infringement under 17 U.S.C. 101 et seq. Petitioner alleged that Yep consisted of lyrics added to his composition, TGB. He contends that Respondents s use of Yep at both of Mayweather s WWE appearances infringed on his copyright of

13 6 TGB. Petitioner initially sought preliminary and permanent injunctive relief, actual damages, profit damages resulting from Wrestlemania XXIV and the August 24, 2009, RAW broadcast, along with statutory damages, as set forth in 17 U.S.C Petitioner later amended the Complaint to remove the request for statutory damages. A joint motion was filed asking the district court to address Petitioner s entitlement to damages under 504 before reaching the question of liability for infringement. The district court granted the motion and ordered the parties to submit partial summary judgment motions concerning Petitioner s entitlement to actual and profit damages under 504(b). Petitioner filed a report (the Einhorn Report ) by an expert, Dr. Michael Einhorn, offering his opinion as to the amount of both actual and profit damages. App. 7a. Included in the Einhorn Report were benchmarks for licensing fees previously paid to other artists for the use of their music at previous Wrestlemania events. App. 7a. The Einhorn Report reviewed the WWE s various profit streams derived from Wrestlemania and calculated the value of Mayweather s appearance at the event relative to the net profits derived from the event, and then calculated the value of Yep. App. 7a-9a. The district court concluded that Petitioner was not entitled to profit or actual damages under 504(b) because Yep did not increase the revenues of the Wrestlemania or RAW programs

14 7 beyond what they would have otherwise garnered. App. 68a. On the issue of actual damages, the district court found Petitioner had failed to satisfy the initial burden of proof under 504(b) because he failed to present evidence demonstrating a causal link between the alleged infringement and the enhancement of any revenue stream claimed by Petitioner. App. 70a. The court further held that Petitioner had not offered sufficient, concrete evidence to indicate an actual value of his beat. App. 71a. C. Fourth Circuit Proceeding On appeal, Petitioner argued the district court erred in granting summary judgment on claims for profit and actual damages. By decision dated September 26, 2013, a panel for the Fourth Circuit affirmed the district court s grant of summary judgment. The Fourth Circuit found summary judgment was proper on profit damages because Petitioner failed to prove the gross revenues related to infringement. App. 50a. Specifically the court found Petitioner failed to provide nonspeculative evidence of a causal link between infringement and the claimed revenues. App. 57a. In regards to actual damages, the Fourth Circuit held that the Einhorn Report s estimating of [Petitioner s] lost licensing fee, without more is too speculative to show that a reasonable jury could return a verdict in [Petitioner s] favor on his actual damages claims, and thus that summary judgment was appropriate. App. 23a.

15 8 REASONS FOR GRANTING THE PETITION First, the Fourth Circuit opinion has created a circuit split with the Second, Seventh, and Ninth Circuits with regard to profit damages. Also, the Fourth Circuit has ignored its own precedent and misapplies the Copyright Act by requiring proof of enhanced profits, which is not required by the statute and is impossible to obtain if the work is used as part of a larger performance or work. Second, the Fourth Circuit compounded its error by finding that Petitioner failed to present any evidence of the value of his work. Upholding the grant of summary judgment is tantamount to finding that the TGB had no value, despite the use of TGB in a national pay-per-view broadcast for a nationally known performer. For the reasons set forth below, the Court should grant review to resolve the circuit conflict over profit damages, and to correct an erroneous decision that heightens the burden of evidence necessary to establish the value of a work. A. THE CIRCUIT CONFLICT REGARDING THE COPYRIGHT ACT S CAUSAL CONNECTION REQUIREMENT IS CLEAR. In its review, the Fourth Circuit assumed that Respondents unlawfully and without permission used Petitioner s composition, TGB, in the worldwide television pay-per-view event Wrestlemania XXIV. Respondents made substantial sums of money from

16 9 this event. The Fourth Circuit s finding that Petitioner is barred from recovery since no causal connection exists between the infringement and the profits earned by infringers because tickets were sold out prior to the infringement is contrary to logic. It also creates an intractable circuit split between the Fourth Circuit and the opinions of the Second, Seventh, and Ninth Circuits. 17 U.S.C. 504(b) reads in pertinent part: The copyright owner is entitled 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. In establishing the infringer s profits, the copyright owner is required to present proof only of the infringer's gross revenue.... Claims for profit damages pursuant to 17 U.S.C. 504(b) must show a causal connection between the profits and the alleged infringement before the burden-shifting provision applies. Bonner v. Dawson, 404 F.3d 290 (4th Cir. 2005). Once the copyright owner establishes the causal connection, the burden shifts to the infringer to show that its revenue was attributable to factors other than the copyrighted work under 504(b). Id. The Fourth Circuit held the profits in question in this matter have no conceivable connection to the

17 10 infringement because they involve revenues that consumers and businesses paid to [Respondents] or agreed to pay [Respondents], prior to discovering that Yep would be played. App. 57a. In other words, because patrons bought their live and payper-view tickets to Wrestlemania without knowing what specific music would be played during the show, Petitioner cannot recover profit damages. This holding is unprecedented. The Fourth Circuit s reasoning is astonishingly broad and ignores practical implications of consumerism and marketing in this country. Very few entertainment consumers know what music will be played in advance of purchasing their ticket. Patrons who purchase a ticket to a movie have no idea what the soundtrack will be when they buy their ticket. Super Bowl patrons are not aware of the artists that will perform at half-time or the songs they will perform. Even concertgoers are not aware of which particular songs the Rolling Stones will play when they purchase their tickets. Under the Fourth Circuit s reasoning, any copyright infringement that is made following a pre-sale of a book, concert, sporting event, etc. cannot result in profit damages. The Fourth Circuit s decision allows gross and flagrant copyright violations in a variety of situations, without recovery of the ill-gotten profits, and creates a split of authority with the other circuits. Demonstrating the causal connection between profits and infringement was never intended to be overly burdensome by the Act; rather as the statute is written, it serves merely as a baseline for a plaintiff to demonstrate that a

18 11 reasonable connection exists, and then the burden shifts to the infringer under 504(b). The Fourth Circuit s opinion has missed this mark. As discussed below, the Second, Seventh, and Ninth Circuits only require that evidence be presented that demonstrates an infringer made profits and a holder s work was infringed upon. In On Davis v. The Gap, Inc., 246 F.3d 152 (2d. Cir. 2001), the Second Circuit held that profit damages can be awarded in cases where an infringer derives profits from the sale of a larger product that contains infringed work even when a product is not purchased solely for the infringed work. In On Davis, plaintiff Davis s eyewear was used in a Gap ad without his permission and he sought compensatory relief by way of both profit and actual damages. Id. at 156. Davis submitted evidence that during and shortly following the campaign ad featuring his eyewear, the corporate parent of The Gap realized net sales of $1.668 billion, an increase of $146 million over the revenues earned in the same period of the proceeding year. Id. at 157. The district court found Davis s claim as unduly speculative and considered the evidence inadequate because the overall revenues of The Gap had no reasonable relationship to the act of the alleged infringement. Id. at 158. The Second Circuit affirmed the district court ruling that the link to the profits of the entire corporation was speculative, but clarified that it is possible to recover profit damages when infringing work includes a mix of infringing and non-infringing content. Id. at 160. The court explained:

19 12 [I]f a publisher published an anthology of poetry which contained a poem covered by the plaintiff s copyright, we do not think the plaintiff's statutory burden would be discharged by submitting the publisher s gross revenue resulting from its publication of hundreds of titles, including trade books, textbooks, cookbooks, etc. In our view, the owner s burden would require evidence of the revenues realized from the sale of the anthology containing the infringing poem. Id. (emphasis added). Just as the author of the single poem may recover from the publisher of the large anthology in On Davis, Petitioner should be able to recover from the use of his composition as part of Wrestlemania XXIV. In the Second Circuit, the poem author is not required to show consumers purchased the anthology because of his poem, rather he merely is required to show that profits were derived from a book that included his work. Id. Similarly, the Seventh Circuit requires a mere showing that the product infringes and there are profits from the sales that included infringed work. In Taylor v. Meirick, 712 F.2d 1112 (7th Cir. 1983), a defendant mapmaker copied and sold plaintiff s copyrighted maps. Defendant was in the business of selling maps and other goods. Id. at Plaintiff submitted evidence of gross revenues and profits derived from the defendant s overall sales. Id. at The court found, [plaintiff] could have made out a prima facie case for an award of infringer s

20 13 profits by showing [defendant s] gross revenues from the sale of the infringing maps. Id. at The Ninth Circuit holds that in order to establish an infringer s profits, the plaintiff is only required to prove the defendant s sales. Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505 (9th Cir. 1985) ( Frank Music I ). In Frank Music I and Frank Music Corp. v. Metro-Goldwyn- Mayer, 886 F.2d 1549 (9th Cir. 1989) ( Frank Music II ), plaintiffs were copyright owners of a musical work. MGM presented a musical revue, and one act included five infringing songs. Plaintiffs sued MGM alleging copyright infringement for the use of the five infringing songs. Id. Plaintiffs prevailed on appeal, and, the Ninth Circuit concluded that a fair approximation of the value of the infringing work attributable to the plaintiff s work to be twenty five percent. Frank Music I, 772 F.2d at 519. Frank Music II increased the award of profit damages and even affirmed the district court s conclusion that 2% of the entire profits of the casino gambling and all were attributed to the infringement from the musical and the plaintiff could recover those as well. Frank Music II, 886 F.2d at Nowhere was there any requirement that the plaintiffs prove customers knew the production would include the infringing works prior purchasing their ticket, or that such knowledge was an inducement for any customer to purchase a ticket. The crux of the Second, Seventh, and Ninth Circuits view on profit damages is that a plaintiff is

21 14 only required to proffer evidence demonstrating that profits were obtained from an event or product that included the holder s work. That fact is undisputed in Petitioner s case. No other circuit has ever required a plaintiff to show that the use of his specific work enhanced the infringer s profits, in order to be entitled to profit damages. Ticket prices represent a culmination of business decisions past and present. Patrons do not independently pay for music, scenery, costumes, lights, etc. Rather they pay for the overall experience reflected in the ticket price. Accordingly, the focus of the other circuits is on whether an infringer enjoyed profits that involved the use of infringed work. Under the Fourth Circuit s standard once a ticket has been sold, the event promoter can infringe upon any content to any degree of infringement without concern that the profits will be disgorged. The Fourth Circuit holding is also in conflict with its own precedent. In Bonner v. Dawson, 404 F.3d 290 (4th Cir. 2005), the court set out the standard model for profit damages. Plaintiff Bonner, an architect, designed a building erected on land owned by one of the defendants. Id. at 292. Shortly thereafter, a second building was built on site using Bonner s original design plans without the Bonner s permission. Id. The district court found that although Bonner s copyright was violated by the second building, Bonner s claim for infringer s profits under 17 U.S.C. 504(b) was barred as a matter of law because no causal link could be found between the building owner s profits and the copyright infringement in other words, to state a claim, Bonner had to show his architectural design was the

22 15 reason for the profits from the building. Id. at 293. The Fourth Circuit found this was an error because the district court had misinterpreted the required level of connection between infringement and profits. Id. at 294. The Fourth Circuit explained: Bonner produced evidence of the profits generated by the leasing agreements in the infringed building. This amount was derived exclusively from the infringed building; no other source contributed to the generated funds. The building generating the funds was designed based upon Bonner s copyright. This is sufficient to satisfy Bouchat s requirement of a causal connection between the infringement and the profit stream. Id. (citing Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 520 (4th Cir. 2003)). In this case, the Fourth Circuit held the critical fact was that Wrestlemania XXIV tickets were sold out prior to the decision to use and infringe on Petitioner s composition, and therefore barred a claim for profit damages because there was no way Petitioner's composition could have increased the profits of a sold-out show. App. 57a. This decision permits widespread abuse of copyright law in the Fourth Circuit. Under this line of reasoning, once a pre-sale for a novel has been completed on Amazon, any change that violates copyright under 504(b) cannot be pursued on a profit damages claim because the sale occurred prior to the change.

23 16 This clear circuit split creates a situation where a plaintiff sitting in the Fourth Circuit is forced to overcome a much higher evidentiary burden to demonstrate a connection to obtain profit damages than a plaintiff in the three other circuits. If this case had been litigated in the Second, Seventh, or Ninth Circuit, the causal connection requirement would have been satisfied by the proffered evidence and a jury would be allowed to determine the amount of such profit damages. Only this Court can resolve the conflict among the circuits regarding the application of the profit damages provision under the Copyright Act and ensure that those provisions are interpreted consistently in the federal courts. B. THE FOURTH CIRCUIT S INTERPRETATION OF THE COPYRIGHT ACT ESTABLISHES AN UNACCEPTABLE BURDEN FOR DEMONSTRATING VALUE FOR NEW ARTISTS SEEKING TO STOP COPYRIGHT INFRINGEMENT. The Fourth Circuit has also grossly misconstrued the necessary evidence to demonstrate value for the purpose of proving actual damages under the Copyright Act. In upholding summary judgment, the court found that Petitioner s expert s valuation of actual damages was speculative. App. 18a. Summary judgment can only be granted on actual damages if the composition has no value at all, not simply because the court disagrees with the valuation offered. Anderson v. Liberty Lobby, Inc.,

24 U.S. 242, 251 (1986). TGB has inherent value based solely on the fact that it was chosen over all other available music for a celebrity s appearance on a national television event. This undisputed fact, coupled with the Einhorn Report, demonstrates the necessary evidence of value under 504. Unlike well-seasoned artists, in cases like Wood v. Houghton Mifflin, 589 F. Supp. 2d 1230 (2008), or On Davis, 246 F.3d at 164, Petitioner is in the early stages of his career without prior sales to easily introduce as evidence to a court. The Fourth Circuit demands evidence of prior sales, licensing, or precise valuation. The Fourth Circuit s decision requires Petitioner and other new artists, who have not sold their work previously, to demonstrate an exact value of either a license fee that would have been charged or provide a valuation of his work. This standard is exceedingly rigid in an area such as music where flat rates are not always the norm, and comparable works can always be distinguished by opposing counsel for a myriad of reasons. Section 504 of the Copyright Act of 1976 provides in pertinent part, The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement U.S.C. 504(b). Generally, the primary measure of recovery is an objective evaluation of the market value of the work at the time of the infringement. See Fitzgerald Publ g Co., Inc. v. Baylor Publ g Co., Inc., 807 F.2d 1110, 1118 (2d Cir. 1986); Mackie v. Rieser, 296 F.3d 909, 917 (9th Cir. 2002). [T]he objective inquiry focuses on the fair market value of the work as negotiat[ed] between a willing buyer

25 18 and a willing seller contemplating the use the infringer made. App. 17a (quoting On Davis, 246 F.3d at 172). Generally, the term actual damages is broadly construed to favor victims of infringement. On Davis, 246 F.3d at 164. Evidence of value can be found in the expert report by Dr. Einhorn, submitted by Petitioner, which provides an analysis of the costs of the event, revenue from both events, a review of music played at this same Wrestlemania event, and an objective measure of TGB s value and the loss licensing fee. App. 7a. Dr. Einhorn concluded Petitioner s song was worth up to $3,000. App. 7a. The Fourth Circuit disregarded Petitioner s expert valuation because the court found the analysis as too speculative given that Petitioner was a new composer and had never sold a song before. App. 23a. This proposition is illogical and prevents any new artist from making a claim for actual damages. Further, the Einhorn Report assessed that a maximum sum of $3,000 represents a nonspeculative figure capping the amount of recovery and established a foundation of TGB s value. Thus, the value of TGB can be valued anywhere from $.01 to $3,000. A determination of the true value is one that can be left to the jury. Bouchat, 346 F.3d at 520 (finding that infringer does not have to prove amounts with mathematical precision). Petitioner demonstrated the evidence necessary to survive summary judgment and any inferences to be drawn should be made in the favor of Petitioner. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, (1986)

26 19 (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)) ( On summary judgment the inferences to be drawn from the underlying facts... must be viewed in the light most favorable to the party opposing the motion. ). Disagreeing with the methodology of Petitioner s expert is not enough to affirm summary judgment to properly affirm, TGB would have to have no value at all, which is unsupported by evidence. It was error to not submit the claim to a jury, and the Fourth Circuit has created a new evidentiary burden for actual damages in copyright cases. It is erroneous, unprecedented, and certiorari should be granted. CONCLUSION Based on the foregoing reasons, Petitioner respectfully requests this Court to grant this Writ of Certiorari. January 21, 2014 Respectfully submitted, By: /s/ John G. Felder, Jr. John G. Felder, Jr. Counsel of Record MCGOWAN, HOOD & FELDER, LLC 1517 Hampton Street Columbia, SC (803) (803) (fax) jfelder@mcgowanhood.com

27 20 William A. McKinnon MCGOWAN, HOOD & FELDER, LLC 1539 Health Care Drive Rock Hill, SC (803) (803) (fax) Attorneys for Plaintiff Thomas L. Moses SOUTHEAST IP GROUP, LLC 13-B West Washington St. Greenville, SC (864) (864)

28 APPENDIX

29

30 ia APPENDIX TABLE OF CONTENTS Page Published Opinion of The United States Court of Appeals for The Fourth Circuit entered September 26, a Order of The United States District Court for The District of South Carolina Re: Granting Defendants Motions for Summary Judgment entered May 11, a Order of The United States Court of Appeals for The Fourth Circuit Re: Denying Appellant s Petition for Panel Rehearing and Rehearing En Banc entered October 22, a

31 1a [ENTERED: September 26, 2013] 731 F.3d 303 United States Court of Appeals, Fourth Circuit. Anthony Lawrence DASH, Plaintiff Appellant, v. Floyd MAYWEATHER, Jr., an individual; Mayweather Promotions; Mayweather Promotions LLC, a/k/a Mayweather Promtions LLC; Philthy Rich Records Inc.; World Wrestling Entertainment Inc., Defendants Appellees. Synopsis No Argued: March 20, Decided: Sept. 26, Background: Musical composer brought copyright infringement action against professional boxer, annual sports entertainment event, and sports entertainment corporation. Defendants moved for summary judgment on issue of damages. The United States District Court for the District of South Carolina, Joseph F. Anderson, Jr., J., 2012 WL , granted motion, and denied reconsideration. Composer appealed. Holdings: The Court of Appeals, Davis, District Judge, held that: [1] summary judgment report failed to demonstrate that composer suffered actual damages from use of song, and

32 2a [2] composer failed to offer nonspeculative evidence in support of profit damages. Affirmed. Davis, Circuit Judge, concurred in the judgment. Attorneys and Law Firms *306 ARGUED: 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 *307 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. Before DAVIS and THACKER, Circuit Judges, and MARK S. DAVIS, United States District Judge for the Eastern District of Virginia, sitting by designation.

33 3a Opinion Affirmed by published opinion. District Judge DAVIS wrote the opinion, in which Judge THACKER joined. Circuit Judge DAVIS wrote a separate opinion concurring in the judgment. DAVIS, District Judge: In this copyright infringement case, Anthony Lawrence Dash ( Dash ) alleges that Floyd Mayweather, Jr. ( Mayweather ), Mayweather Promotions, Mayweather Promotions LLC, Philthy Rich Records, Inc., and World Wrestling Entertainment, Inc. ( WWE ), (collectively Appellees ), violated his copyright by playing a variant of Dash s copyrighted music during Mayweather s entrance at two WWE events. Dash appeals from the district court s grant of summary judgment on the issue of his entitlement to damages under 17 U.S.C. 504(b). For the reasons set forth below, we affirm. I. A. In 2005, Dash composed an instrumental music track entitled Tony Gunz Beat ( TGB ). Dash has created a number of musical tracks; however, Dash has never received revenue from TGB or any other musical composition. On February 7, 2008, Mayweather, a well-known boxer, entered into a contract with the WWE under which Mayweather agreed to promote and perform at a live WWE pay-per-view event: Wrestlemania

34 4a XXIV. Tickets for Wrestlemania XXIV were sold out at the time the parties entered into the contract. The contract did not address the music to be played during Mayweather s appearance at the event, nor did the parties discuss Mayweather s entrance music at the time they entered into the contract. At some point prior to Wrestlemania XXIV, the WWE communicated to Mayweather that it had selected a song by the musical artist 50 Cent to be played as Mayweather entered the ring at the event. However, the night before Wrestlemania XXIV, one of Mayweather s associates communicated to the WWE that Mayweather would be entering to a different song, entitled Yep. Mayweather s manager provided the WWE with a CD containing the song and represented 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. Dash claims that Yep combines lyrics with his nowcopyrighted instrumental music, TGB. On August 19, 2009, Mayweather entered into a second contract with the WWE in which he agreed to appear as a Raw Guest Host on the WWE s August 24, 2009 broadcast of its live weekly program, RAW. Like the Wrestlemania XXIV contract, this contract did not include any terms or conditions related to Mayweather s entrance music. On August 24, 2009, *308 in accordance with the RAW contract, Mayweather appeared as a live guest host on RAW. As in Wrestlemania XXIV, Yep was played in connection with Mayweather s appearance.

35 5a Although Dash alleges that he created TGB in 2005, he did not file a copyright application for the beat with the United States Copyright Office until sometime in Dash then received a Certificate of Registration providing an effective date of registration for TGB of October 13, (J.A.33). Dash claims that Appellees use of Yep in connection with both of Mayweather s WWE appearances infringed his copyright in TGB. Therefore, the claimed infringement is alleged to have occurred after Dash composed TGB, but before his copyright registration became effective. For the purpose of summary judgment, the parties stipulated to the existence and amount of several revenue streams associated with Wrestlemania XXIV and the August 24, 2009, RAW broadcast. 1 The parties further stipulated as follows: 7. [Dash] has adduced no evidence that the playing of the Yep song at Wrestlemania XXIV or the August 24, 2009 RAW show increased any of the 1 Dash claims the following revenue streams with respect to the WWE: (1) ticket sales from Wrestlemania XXIV; (2) pay-perview buys of Wrestlemania XXIV; (3) revenues from the webcast of Wrestlemania XXIV; (4) home videos of Wrestlemania XXIV; (5) live event merchandise from Wrestlemania XXIV; (6) the Wrestlemania XXIV event program; (7) revenues from the television broadcast of Wrestlemania XXIV; (8) ticket sales from the August 24, 2009, RAW broadcast; (9) television rights fees from the August 24, 2009, RAW broadcast; (10) Canadian television advertising during the August 24, 2009, RAW broadcast; (11) live event merchandise from the August 24, 2009, RAW broadcast; and (12) the event program from the August 24, 2009, RAW broadcast. (J.A. 933).

36 6a WWE revenue streams... beyond that which would have existed without the song Yep. 8. [Dash] has adduced no evidence that WWE received any additional revenue beyond that which would have existed without the song Yep, in any of the revenue streams for Wrestlemania XXIV or the August 24, 2009 RAW show... due to the use of the Yep song by Mayweather. Id. B. Dash filed this copyright infringement action against Appellees on April 26, Dash initially sought preliminary and permanent injunctive relief, actual damages, profit damages from both Wrestlemania XXIV and the August 24, 2009, RAW broadcast, and statutory damages, all as set forth in 17 U.S.C Dash later amended his Complaint to remove his request for statutory damages. As the district court observed, because Dash had not registered his copyright prior to the alleged infringement, statutory damages were not available to him. See Dash v. Mayweather, No. 3:10cv1036 JFA, 2012 WL , at *4 (D.S.C. May 11, 2012). Following several discovery disputes between the parties and upon Appellees motion, the district court bifurcated the proceedings with respect to liability and damages. The parties then filed a joint motion asking the district court to address Dash s

37 7a entitlement to damages under 504 before reaching the question of Appellees liability for infringement. The district court granted this motion and ordered Appellees to submit partial summary judgment motions concerning Dash s entitlement to actual and profit damages under 504(b), which Appellees later filed. *309 In response, Dash filed a report prepared by a retained expert, Dr. Michael Einhorn, discussing the amount of both actual and profit damages Dash should receive based on the alleged infringement (the Einhorn Report ). The Einhorn Report described certain background information concerning Dash s history as an artist and the general importance of music to the WWE. It then addressed Dash s entitlement to damages under 504(b). Regarding actual damages, 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 stated that Dash would have earned a maximal sum of $3,000 for the use of his musical composition. (J.A. 1088). Accordingly, the Einhorn Report concluded that Dash s actual damages were no more than $3,000. Id. at With respect to profit damages, the Einhorn Report reviewed the WWE s various profit streams attributable to Wrestlemania XXIV, calculated the value of Mayweather s appearance at that event relative to the net profits derived from the event, and then calculated the value of Yep to Mayweather s appearance based on the minutes of use relative to the length of Mayweather s performance. Id. The Einhorn Report concluded that

38 8a $541,521 of the WWE s net profit from Wrestlemania XXIV was attributable to the WWE s infringing use of TGB. Id. at The Einhorn Report performed the same calculation with respect to the net profits that Mayweather derived directly from his appearance at Wrestlemania XXIV, concluding that $480,705 of such profits was attributable to the infringing use. Id. at The Einhorn Report did not conduct similar analyses concerning the August 24, 2009, RAW broadcast, concluding that there was not sufficient information to apportion a share of the Appellees net profits to the infringing use of TGB. Id. at Therefore, based only on the calculations related to Wrestlemania XXIV, the Einhorn Report concluded that Dash should receive no less than... $1,019,226, over and above any actual damages received, to disgorge the profits Appellees derived from their alleged infringement of Dash s copyrighted music. 2 Id. On May 9, 2012, the district court held a hearing on Appellees motions for summary judgment. Following the hearing, the district court issued an order granting both motions, finding that Dash was not entitled to either actual or profit damages under 504(b). Addressing profit damages first, the district court considered the issue of Dash s entitlement to a portion of the profits Appellees derived from Wrestlemania XXIV and from the August 24, 2009, RAW broadcast. With respect to these profit 2 We observe that the sum of the apportioned net profits recited in the Einhorn Report is $1,022,226 and not $1,019,226. (J.A ). It appears that Dr. Einhorn subtracted his maximal estimation of Dash s actual damages from the total profit damages in reaching the figure of $1,019,226, although he did not address this apparent step in his analysis.

39 9a damages, the district court found that Dash had failed to satisfy his initial burden of proof under this Circuit s burden shifting approach to 504(b). Specifically, in light of Dash s stipulation that the playing of Yep did not increase the revenues of either event beyond what such revenues would have otherwise been, the district court found that Dash had failed to present evidence demonstrating a causal link between the alleged infringement and the enhancement of any revenue stream claimed by Dash. In the absence of such evidence, the district court concluded that there was no conceivable connection between the alleged infringement and the *310 claimed revenues and that, absent evidence establishing such a connection, summary judgment was appropriate on the issue of profit damages. Dash, 2012 WL , at *3. The district court also held that Dash was not entitled to recover any actual damages under 504(b). In so holding, the district court found that Appellees had offered evidence that TGB did not have a market value, specifically, the lack of any reported income on Dash s tax returns and the absence of any other proof that he had previously sold his musical compositions. In response, Dash relied only on the Einhorn Report s calculation of TGB s maximal value, which was based on the fees paid to other entertainers at Wrestlemania XXIV. The district court found that the Einhorn Report s estimation of TGB s market value amounted to nothing more than speculation, because the entertainers whose fees the Einhorn Report used as benchmarks were not similarly situated to Dash. As Dash had offered no other evidence to show that TGB had a market value, the district court held that

40 10a Dash had failed to offer[ ] sufficient, concrete evidence to indicate an actual value of the beat, and concluded that Appellees were therefore entitled to summary judgment on the actual damages claim. Id. at *5. Because the district court found that Dash was not entitled to any profit or actual damages, 3 it further held that the case would not proceed to the liability phase, dismissed the pending discovery motions as moot, and directed that the case be closed. Dash moved for reconsideration of the district court s order, which motion the district court denied. Dash now appeals both the district court s original grant of summary judgment and its denial of reconsideration with respect to his entitlement to actual and profit damages under 504(b). II. We review a grant of summary judgment de novo, applying the same standard as the trial court and without deference to the trial court. 4 Couch v. Jabe, 3 In concluding that Dash was not entitled to any relief in the underlying action, the district court held that it did not need to address Dash s claim for injunctive relief because Mayweather had agreed not to use Yep again and, even if Mayweather did use the song again, Dash s copyright of TGB would present the district court with a much different question. Dash does not appeal this decision, so the question of his entitlement to such relief is not before this Court. 4 As noted above, Dash also appealed the district court s denial of his Rule 59(e) motion for reconsideration, (J.A. 616); however, Dash neither briefed nor argued this issue on appeal. See Fed. R.App. P. 28(a)(9) (requiring an appellant to brief all issues raised on appeal); see also Edwards v. City of Goldsboro, 178 F.3d 231, 241 n. 6 (4th Cir.1999) (holding that failure to

41 11a 679 F.3d 197, 200 (4th Cir.2012) (quoting Nader v. Blair, 549 F.3d 953, 958 (4th Cir.2008)). In conducting such review, we construe the evidence, and all reasonable inferences that may be drawn from such evidence, in the light most favorable to the nonmoving party. PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 119 (4th Cir.2011). Summary judgment is appropriate only *311 when there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a). Any party may seek summary judgment, regardless of whether he may ultimately bear the burden of proof under the relevant statutory scheme as a copyright infringer may under 17 U.S.C. 504(b). Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, (4th Cir.2003). Irrespective of the burdens assigned by the applicable substantive law, Federal Rule of Civil Procedure 56 requires the movant to show that summary judgment is warranted. Fed.R.Civ.P. 56(a). We have observed that once the movant has satisfied this initial burden of demonstrating the absence of a genuine dispute as to any material fact, the nonmoving party must show that a genuine dispute does, in fact, exist. comply with Rule 28(a)(9) triggers abandonment of that claim on appeal ); Cavallo v. Star Enter., 100 F.3d 1150, 1152 n. 2 (4th Cir.1996). Because Dash briefed and argued only the merits of summary judgment, Dash has abandoned his appeal of the district court s denial of his Rule 59(e) motion for reconsideration. Had Dash not abandoned this claim, we would have reviewed it for abuse of discretion, a much more deferential standard than the de novo standard applied to our review of the district court s grant of summary judgment. See Brown v. French, 147 F.3d 307, 310 (4th Cir.1998).

42 12a Bouchat, 346 F.3d at 522 (citing Matsushita Elec. Co., v. Zenith Radio Corp., 475 U.S. 574, , 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A party raises a genuine issue of material fact with respect to a claim only if a reasonable jury could return a verdict for that party on each element necessary to that claim. Banca Cremi, S.A. v. Alex. Brown & Sons, Inc., 132 F.3d 1017, 1027 (4th Cir.1997). Although the court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th Cir.1997). Rather, a party opposing a properly supported motion for summary judgment... must set forth specific facts showing that there is a genuine issue for trial. Bouchat, 346 F.3d at 522 (quoting Fed.R.Civ.P. 56(e) (2002) (amended 2010)). If the adverse party fails to provide evidence establishing that the factfinder could reasonably decide in his favor, then summary judgment shall be entered regardless of [a]ny proof or evidentiary requirements imposed by the substantive law. Id. (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). Guided by this standard of review, we analyze the merits of Dash s appeal. III. Dash contends that the district court erred in granting summary judgment on his claims for actual and profit damages. Title 17, United States Code,