Kleier Advertising, Inc. v. Premier Pontiac, Inc., 86-C-1015-C.

• Decision Date: 06 June 1988
• Docket Number: No. 86-C-1015-C.,86-C-1015-C.
• Citation: 698 F. Supp. 851
• Parties: KLEIER ADVERTISING, INC. and Kleier Marketing, Inc., Plaintiffs, v. PREMIER PONTIAC, INC. d/b/a Lister Pontiac, Charles Lister, Stokely Outdoor Advertising, Inc. and Bill Stokely, Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

698 F. Supp. 851

KLEIER ADVERTISING, INC. and Kleier Marketing, Inc., Plaintiffs, v. PREMIER PONTIAC, INC. d/b/a Lister Pontiac, Charles Lister, Stokely Outdoor Advertising, Inc. and Bill Stokely, Defendants.

No. 86-C-1015-C.

United States District Court, N.D. Oklahoma.

June 6, 1988.

Jack A. Wheat, Roach Becker & Wheat, Louisville, Ky., Alan T. McCollom, Lucian Beavers, Laney, Dougherty, Hessin & Beavers, Tulsa, Okl., for plaintiffs.

Mark G. Kachigian, William S. Dorman, Paul B. Naylor, David Tracy, Naylor & Williams, Inc., Stephen L. Wilkerson, Knight, Wagner, Tulsa, Okl., for defendants.

ORDER

H. DALE COOK, Chief Judge.

Before the Court for its consideration is plaintiffs' proposed journal entry of judgment and defendants' objections to the proposed judgment.

After careful consideration of the record and applicable law, the Court finds as follows.

17 U.S.C. § 504(b) provides:

(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.

Section 504(b) explicitly states that the copyright owner is permitted to recover actual damages and any profits of the infringer that are not taken into account in computing the actual damages. This latter underscored clause cannot be ignored. The statute expressly prohibits the possibility of double recovery. See e.g. Taylor v. Meirick, 712 F.2d 1112, 1120 (7th Cir.1983).

The jury entered "$17,120.05" on each of the Verdict Forms 2 through 5, representing the requested initial license fee of the plaintiffs for one year and for a one-year renewal. Plaintiffs assert that the Court should view this award as $17,120.05 as against defendant Premier Pontiac and an equivalent amount against defendant Stokely for loss profits i.e. "revenues attributable to the infringement." Plaintiffs argue that the "loss revenues" amount to a sum of $16,500.00 which is close enough to the amount indicated. Moreover, plaintiffs graciously agree to a remittitur of the Stokely verdict to the sum of $16,500.00 if the Court will permit the award.

Although it is correct, as plaintiffs argue, that a jury could return a verdict for both actual damages and loss profits, the jury in this action chose not to do so. Rather the jury calculated what they considered to be the damages suffered by plaintiff and awarded the sum as against...