Andreas v. Volkswagen of America, Inc.
| Decision Date | 24 April 2002 |
| Docket Number | No. C00-2021.,C00-2021. |
| Citation | 210 F.Supp.2d 1078 |
| Parties | Brian ANDREAS, an individual; Storypeople, Inc., an Iowa corporation; and Storypeople Graphics, Inc., an Iowa corporation, Plaintiffs, v. VOLKSWAGEN OF AMERICA, INC., d/b/a Audi of America, Inc., a New Jersey corporation, and McKinney & Silver, Inc., a Delaware corporation, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
J. Michael Weston, Matthew J. Krigbaum, Lisa Stephenson, Moyer & Bergman, PLC, Cedar Rapids, IA, S. Jerome Mandel, Lilly Lewis, Mandel & Norwood, Santa Monica, CA, for Plaintiffs.
Edward J. McIntosh, Michael C. Gilchrist, Dorsey & Whitney, Des Moines, IA, Edmund J. Sease, Jeffrey D. Harty, John Darrell Goodhue, McKee, Voorhees & Sease, PLC, Des Moines, IA, Howard R. Weingrad, Sara L. Edelman, Davis & Gilbert, LLP, New York City, for Defendants.
This matter comes before the court pursuant to the plaintiff's December 18, 2001 motion for an award of prejudgment and post judgment interest (docket number 97) and the defendants' December 19, 2001 motion for judgment as a matter of law or in the alternative for a new trial or remittitur (docket number 100). The court held a hearing on these motions on March 12, 2002. The motion for prejudgment and post judgment interest is granted, the motion for judgment as a matter of law is granted in part and denied in part, and the motions for a new trial or remittitur are denied.
This copyright infringement case arises out of the text of a television commercial for the Audi TT automobile. The plaintiff, Brian Andreas, alleged that he is the author of that text, that it was protected by the copyright laws and that it was used without his permission. The plaintiff claims that the commercial infringes his work "Angels of Mercy," a depiction of an angel with text that reads, "Some people don't know that there are angels whose only job is to make sure you don't get too comfortable & fall asleep & miss you life." The "Angels of Mercy" piece was first sold in print form in 1994.
The commercial at issue was created by the advertising agency, McKinney & Silver, for its client, Audi. The commercial is referred to as the "Wake Up Call" commercial. The thirty-second commercial depicted the Audi TT Coupe in a garden among neoclassical statues. It was accompanied by music composed by Bobby McFerrin. The only words in the Audi commercial, spoken as a voice over, state the following: "I think I just had a wakeup call, and it was disguised as a car, and it was screaming at me not to get too comfortable and fall asleep and miss my life." It focuses on the Audi TT when it states "disguised as a car and it was screaming at me." It then focuses twice on the TT emblem on the back of the car. The trailer shows "Audi The New TT." No other car is shown. The commercial aired in 1999.
Trial to a jury was held from November 27, 2001 through December 4, 2001. On December 5, 2001, the jury found McKinney & Silver and Audi liable for copyright infringement. The jury awarded the plaintiff $115,000 in actual damages, $570,000 of Audi profits, and $280,000 of profits from McKinney & Silver. The defendants then moved for judgment as a matter of law, remittitur, or a new trial. The plaintiff argues that the court does not have jurisdiction to hear the post-trial motions and even if heard, the motions should be denied because the jury awards were supported by the evidence.
The Court has Jurisdiction Because the Defendants' Post-trial Motion Satisfied the Requirements of Federal Rule of Civil Procedure 7.
The first issue raised is whether this court has jurisdiction to hear the defendant's motion. The plaintiff contends that under Federal Rule of Civil Procedure 7, the defendants' motion was filed within the 10 day period for post judgment motions but the motion itself was deficient in that it did not state any grounds for appeal. The defendants contend that their motion for judgment as a matter of law satisfied Federal Rule of Civil Procedure 7 due to the flexibility of the Rule based on the specific circumstances of each case. Furthermore, the defendants argue that they were given permission to wait for a transcript of the trial before filing their briefs so they could include references to the trial transcript in their briefs. The defendants' motion stated:
COMES NOW, the Defendants, VOLKSWAGEN OF AMERICA, INC., d/b/a AUDI OF AMERICA, INC., and MCKINNEY & SILVER, INC., and moves the Court pursuant to Federal Rule of Civil Procedure 50 for an order granting judgment as a matter of law to defendants on plaintiff BRIAN ANDREAS' claim for profits. Alternatively, if the Court decides not to vacate the award or order a new trial on the issue of McKinney & Silver's profits pursuant to Federal Rule of Civil Procedure 59. Pursuant to the Parties' teleconference with the Court on December 18, 2001, a supporting memorandum of law will be filed, pursuant to a briefing schedule to be determined once the trial transcript is available.
Federal Rule of Civil Procedure 7 sets forth the required form of motions. The rule says, Fed.R.Civ.P. 7(b)(1). In Martinez v. Trainor, 556 F.2d 818 (7th Cir.1977), the Seventh Circuit Court of Appeals held that a motion that failed to cite even one ground for relief, lacked reasonable specificity and, as a result, the motion did not toll the time to file an appeal. The court reasoned, "if a party could file a skeleton motion and then fill it in, the purpose of the time limitation would be defeated." Id., see also, Riley v. Northwestern Bell Telephone Company, 1 F.3d 725, 727 (8th Cir.1993) ().
The particularity requirement of post-trial motions is to be read flexibly in "recognition of the peculiar circumstances of the case." Cambridge Plating Co., Inc. v. Napco, Inc., 85 F.3d 752, 760 (1st Cir.1996) quoting, Registration Control Sys., Inc. v. Compusystems, Inc., 922 F.2d 805, 808 (Fed.Cir.1990). The court went on to explain its holding by saying:
This is because Rule 7 is designed "to afford notice of the grounds and prayer of the motion to both the court and the opposing party, providing that party with a meaningful opportunity to respond and the court with enough information to process the motion correctly." When a motion is challenged for lack of particularity the question is "whether any party is prejudiced by a lack of particularity or `whether the court can comprehend the basis for the motion and deal with it fairly.'"
quoting Compusystems, Inc. 922 F.2d at 807-08; 5 C. Wright & A. Miller, Federal Practice & Procedure § 1192, at 42 (1990).
The defendants raised the issue of awarding profits in a motion in limine, at the end of the plaintiff's presentation of evidence, and at the conclusion of their case. It comes as no surprise to the plaintiff that the defendants are contesting the jury's award of profits and the plaintiff was not prejudiced by the bare motion and subsequent briefs. The defendants filed a motion with the court within the 10 day period. The motion, although not very specific, set forth the grounds for post-judgment motions. Specifically, the defendants indicated in their post-trial motion that they planned to appeal the award of the defendants' profits to the plaintiff. With the court's permission, the defendants waited until they received a transcript of the trial and then filed their briefs. The motion filed by the defendants on December 19, 2001 satisfied the requirements of Fed.R.Civ.P. 7(b)(1). As a result, this court has jurisdiction to determine the motions for judgment as a matter of law, remittitur, and for a new trial.
More importantly, this court reserved ruling on the motions for judgment as a matter of law made at the end of the plaintiff's presentation of evidence and at the end of the defendants presentation of evidence. The court now rules on those motions for which ruling was reserved.
The Jury Award of $570,000 of Defendant Audi's Profits to the Plaintiff was Improperly Based on Speculation and Conjecture Because the Plaintiff failed to Prove a Connection Between the Infringement and Audi's Revenue.
The defendants have moved the court for an order granting judgment as a matter of law on the issue of the award of Audi's profits. The defendants contend that the plaintiff failed to prove any connection between the infringement and the revenues realized by Audi due to the sales of the new TT automobile. The plaintiff argues that he met his burden by establishing the gross revenues earned by Audi through the sales of the TT automobile, by proving that the advertising campaign was very important to Audi's promotional plan and by producing evidence establishing that the bonus paid by Audi to McKinney & Silver was based, in part, on the success the commercial had on the public (See trial exhibits 33, 56, 57, and 64).
Pursuant to 17 U.S.C. § 504(b):
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...
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