Jordan v. Time, Inc., s. 95-5432
| Decision Date | 25 April 1997 |
| Docket Number | Nos. 95-5432,96-4414,s. 95-5432 |
| Citation | 111 F.3d 102 |
| Parties | 1997 Copr.L.Dec. P 27,626, 37 Fed.R.Serv.3d 771, 42 U.S.P.Q.2d 1570, 25 Media L. Rep. 1636, 10 Fla. L. Weekly Fed. C 845 Pat JORDAN, Plaintiff-Appellant, v. TIME, INCORPORATED, Defendant-Appellee. Pat JORDAN, Plaintiff-Appellee, v. TIME, INCORPORATED, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Peter Cajetan Bianchi, Jr., Taylor, Brion, Buker & Greene, Miami, FL, Alan Neigher, Byelas & Neigher, Westport, CT, for Plaintiff-Appellant in No. 95-5432.
David B. Wolf, New York City, for Defendant-Appellee in No. 95-5432.
Sanford L. Bohrer, Holland & Knight, Miami, FL, David B. Wolf, New York City, for Defendant-Appellant in No. 96-4414.
Peter C. Bianchi, Jr., Law Offices of Peter C. Bianchi, Jr., Coral Gables, FL, for Plaintiff-Appellee in No. 96-4414.
Appeals from the United States District Court for the Southern District of Florida.
Before CARNES, Circuit Judge, and FAY and CLARK, Senior Circuit Judges.
Appellant Pat Jordan filed a copyright infringement suit against appellee Time, Incorporated ("Time") when Sports Illustrated reprinted an article authored by Jordan without prior consent. Time made two offers of judgment, Fed.R.Civ.P. 68, which Jordan rejected. After Time admitted liability, the district court conducted a jury trial solely on the issue of damages. The jury returned a verdict awarding Jordan actual damages, but rejecting Jordan's claim for a portion of Time's profits and his claim that the infringement was willful. Following the jury verdict, Jordan elected to pursue statutory damages. 17 U.S.C. § 504(c)(1) (1994). The district court awarded damages to Jordan. Both sides then filed motions for attorneys' fees and costs. The district court denied the motions. On appeal, Jordan argues the jury instructions on the issue of damages were erroneous. Time cross appeals from the district court's denial of its motion for attorneys' fees and costs. Having timely elected to receive statutory damages from the court, Jordan is precluded from appealing any question related to actual damages. As to Time's cross appeal, because Fed.R.Civ.P. 68 requires a district court to impose costs, we reverse the district court's order denying Time's motion and remand the matter to the district court for further proceedings.
Pat Jordan is a professional author who has written over forty articles for Sports Illustrated magazine ("SI"). In 1971, Jordan authored an article about a former professional baseball pitcher named Robert "Bo" Belinsky, which SI published in its March 6, 1972, edition. The article was published pursuant to an agreement entered between Jordan and SI. Under the terms of the agreement, Jordan would submit certain articles to SI and SI would have first publication rights. Following SI's first publication of the Belinsky article, Jordan was the registered owner of the existing copyrights to the article.
In 1993, SI celebrating its 40th anniversary, reprinted the article without obtaining Jordan's prior consent or offering to purchase republication rights. Based on SI's allegedly unlawful republication of Jordan's After Time admitted liability for copyright infringement, the district court held a three day jury trial solely on the issue of damages. The jury returned a verdict awarding Jordan $5,000.00 in actual damages, but rejecting Jordan's claim for a portion of Time's profit and his claim that the infringement was willful. Following the jury verdict, but before final judgment was entered, Jordan elected to recover statutory damages. 17 U.S.C. § 504(c)(1) (1994). The district court awarded Jordan $5,500.00 in damages, but similarly rejected Jordan's claims for a share of Time's profits and that the infringement was willful. The district court then entered final judgment in the case. Jordan appeals from this final judgment.
article, Jordan filed a copyright infringement suit against Time, the publisher of SI. Pursuant to Rule 68 of the Federal Rules of Civil Procedure, Time made an offer of judgment to Jordan in the amount of $15,000.00, plus attorneys' fees and costs, if any. Subsequently, Time increased its offer of judgment to $20,000.00. Jordan rejected both offers.
Both parties filed motions for attorneys' fees and costs. Jordan argues that as the "prevailing party" he is entitled to attorneys' fees and costs under 17 U.S.C. § 505 (1994). Time contends that since Jordan did not obtain a judgment more favorable than the ones contained in Time's offers of judgment, Jordan must pay Time's attorneys' fees and costs. Fed.R.Civ.P. 68. The district court "exercis[ing] its power of equitable discretion" denied both motions. 1 Time cross appeals from the district court's order denying its motion for attorneys' fees and costs.
On appeal, Jordan asserts he is entitled to a new trial because the district court erroneously instructed the jury. More specifically, Jordan contends the district court erred in instructing the jury that any profits recoverable under the Copyright Act must be "directly attributable" to the infringement, and not "remotely" or "speculatively" attributable to the infringement. 2 Because Jordan elected to pursue statutory damages, he is now estopped from appealing the jury's award of actual damages.
Under 17 U.S.C. § 504(a), a copyright owner may choose between two types of damages: actual damages and profits or statutory damages. The election between actual and statutory damages is to be made "at any time before final judgment is rendered." 17 U.S.C. § 504(c). In our case, the jury awarded Jordan $5,000.00 in actual damages. Jordan then timely opted for statutory damages, and the district court awarded Jordan $5,500.00.
The Second Circuit has stated that "[o]nce a plaintiff has elected statutory damages, it has given up the right to seek actual damages and may not renew that right on appeal by cross-appealing to seek an increase in the actual damages." Twin Peaks Productions v. Publications Intern., 996 F.2d 1366, 1380 (2d Cir.1993). We agree with the Second Circuit. A plaintiff is precluded from electing statutory damages and then appealing the award of actual damages; plaintiff does not get two bites of the apple. The language of the statute is clear and precise: "the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action...." 17 U.S.C. § 504(c). Under this option, a plaintiff may proceed as Jordan did, but once a timely election is made to receive statutory damages all questions regarding actual and other damages are rendered moot.
In its cross appeal, Time argues that Fed.R.Civ.P. 68 mandates a district...
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