Oboler v. Goldin, 83-7153

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation714 F.2d 211,220 USPQ 166
Docket NumberNo. 83-7153,83-7153
Parties, 1983 Copr.L.Dec. P 25,560 Arch OBOLER and Nostalgia Lane, Inc., Appellees, v. J. David GOLDIN, Kos Records, Radio Yesteryear, and Radiola Records, Appellants.
Decision Date01 August 1983

Philip C. Pinsky, Pinsky & Pliskin, Syracuse, N.Y. (Ronald Gene Wohl, Ralph I. Greenhouse, George Skandalis, Syracuse, N.Y., Ferziger Wohl Finkelstein & Rothman, New York City, on the brief), for appellants.

Jon Michael Probstein, Probstein & Napolitano, New York City (Anthony Napolitano, Glenn R. Gottfried, New York City, of counsel), for appellees.

Before OAKES and PRATT, Circuit Judges, and METZNER, District Judge. *

PER CURIAM:

We are reviewing a directed verdict for the holder of copyrights and his exclusive licensee, who sought damages for the unauthorized use of old time radio plays. At the close of defendants' case before a jury, the United States District Court for the Southern District of New York, Robert J. Carter, Judge, directed a verdict on liability, and made findings on compensatory and punitive damages. By order, he enjoined Goldin, doing business under the names Kos Records, Radio Yesteryear, and Radiola Records, from producing, distributing, selling, or offering for sale any sound reproduction of Oboler's radio plays. The court awarded $33,000 compensatory damages to the exclusive licensee, Nostalgia Lane, Inc.; $15,000 punitive damages to both plaintiffs; $10,000 attorney's fees; and $3,295 costs. We affirm in part and vacate and remand in part.

Whether a verdict should be directed is a question of law; the appellate court therefore applies the same standard on review as did the trial court in granting the motion. A directed verdict is, of course, proper when, without weighing the credibility of the evidence, and viewing the evidence in the light most favorable to the party against whom the motion is made, Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 1409, 8 L.Ed.2d 777 (1962), a reasonable jury could reach only one proper conclusion. Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir.1970).

After review of the trial record, we affirm the directed verdict as to liability, Judge Carter correctly determined that a reasonable jury could only conclude that Goldin was a copyright infringer because he had violated the exclusive rights of the legal owners of those rights, Oboler and Nostalgia Lane, Inc. 17 U.S.C. § 501(a), (b); Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980). Oboler owned, registered, and renewed copyrights to fourteen radio shows. In 1978, he granted an exclusive license to Nostalgia Lane, Inc., to distribute and sell these shows. Goldin, doing business under various names, sold tapes of some, if not all of these shows after 1978, and continued to sell the tapes after notice from plaintiffs of his infringement and, indeed, after filing of this legal action. Once Oboler established the fact of copyright ownership and infringement, the burden of proof shifted to Goldin to show invalidity or waiver of the copyright; the testimony was insufficient to establish either.

We vacate the directed verdict on damages, which should not have been taken from the jury, and remand for one of two courses of action: election of statutory damages, which may be awarded by the court in its discretion, 17 U.S.C. § 504(a)(2) (c); or a new trial limited to the issue of actual damages plus infringer's profits, 17 U.S.C. § 504(a)(1), (b). If the action proceeds to a new trial, we note that punitive damages are not available under the Copyright Act of 1976.

Remedies for infringement under the Copyright Act of 1976 may be pleaded in the alternative, 17 U.S.C. § 504(a), as plaintiffs in this action did plead them, but the copyright owner is to make an election before final judgment. Id. (c)(1). Election of statutory damages precludes recovery of actual damages and profits. Id. Because we vacate the order as to damages, Oboler and Nostalgia Records, Inc., may make the election which so far as the record indicates they failed to make at the first trial. The determination of statutory damages, including a fivefold increase in the maximum award if the plaintiff proves and the court finds willful infringement, is assigned by statute to the judge rather than the jury. Id. (c)(1), (2); 3 M. Nimmer, Nimmer on Copyright § 14.04[C], at 14-31--14-32 (1982) ("the better view"); but see ...

To continue reading

Request your trial
70 cases
  • Sony Music Entm't v. Cox Commc'ns, Inc.
    • United States
    • U.S. District Court — Eastern District of Virginia
    • June 2, 2020
    ...damages are not awarded in a statutory copyright infringement action. See 4 Nimmer § 14.02[B], at 14–23 to 24; Oboler v. Goldin , 714 F.2d 211, 213 (2d Cir. 1983). The purpose of punitive damages—to punish and prevent malicious conduct—is generally achieved under the Copyright Act through t......
  • Straus v. Dvc Worldwide, Inc.
    • United States
    • U.S. District Court — Southern District of Texas
    • March 23, 2007
    ...punitive damages are generally not allowed in cases of copyright infringement. See 4 Nimmer § 14.02[B], at 14-23-24; Oboler v. Goldin, 714 F.2d 211, 213 (2d Cir.1983). Straus responds that he is not seeking punitive damages. Instead, he argues that his claim for an increased actual damage a......
  • SBK Catalogue Partnership v. Orion Pictures
    • United States
    • U.S. District Court — District of New Jersey
    • September 13, 1989
    ...of the exclusive rights, the state law in question must be deemed preempted." 723 F.2d at 200 (citing Oboler and Nostalgia Lane, Inc. v. Goldin, 714 F.2d 211, 213 (2d Cir. 1983)). Viewed under this test it is clear that the Partnership's state law claims, with the exception of its abuse of ......
  • Harper & Row Publishers, Inc. v. Nation Enterprises
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 17, 1983
    ...would infringe one of the exclusive rights, the state law in question must be deemed preempted. Oboler and Nostalgia Lane, Inc. v. Goldin, et al., 714 F.2d 211 at 213 (2d Cir.1983); Orth-O-Vision, Inc. v. Home Box Office, 474 F.Supp. 672, 683-84 (S.D.N.Y.1979); 1 Nimmer on Copyright Sec. 1.......
  • Request a trial to view additional results
2 books & journal articles
  • Table Of Cases
    • United States
    • ABA Antitrust Library Antitrust Counterattack in Intellectual Property Litigation Handbook
    • January 1, 2010
    ...2007 U.S. Dist. LEXIS 56617 (E.D. Pa. 2007), 156. Oakley Inc. v. Sunglass Hut Int’l, 316 F.3d 1331 (Fed. Cir. 2003), 35. Oboler v. Goldin, 714 F.2d 211 (2d Cir. 1983), 77. Odetics, Inc. v. Storage Tech. Corp., 185 F.3d 1259 (Fed. Cir. 1999), 53. Oetiker v. Jurid Werke GmbH, 671 F.2d 596 (D.......
  • Basics of Intellectual Property Laws for the Antitrust Practitioner
    • United States
    • ABA Antitrust Library Antitrust Counterattack in Intellectual Property Litigation Handbook
    • January 1, 2010
    ...Supp. 219, 224 (E.D. Mo. 1995). 393. See , e.g. , BMI v. Blueberry Hill, 899 F. Supp. 474, 482 (D. Nev. 1995). 394. See Oboler v. Goldin, 714 F.2d 211, 213 (2d Cir. 1983); see also Davis , 246 F.3d at 172 (“The purpose of punitive damages—to punish and prevent malicious conduct—is generally......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT