Lopez v. Meyers’ G.M. Enters., Inc. was a copyright infringement case decided in the United States District Court for the Western District of Wisconsin on September 12, 2023. The Plaintiffs were models whose photographs were used without authorization in promotional materials by the Defendants, two businesses operating as Cajun Club. The Plaintiffs filed a motion to allow certain witnesses to testify via video conference at the upcoming trial. The Defendant filed two Daubert motions in limine seeking to exclude the expert testimony of the Plaintiffs’ witnesses, Stephen Chamberlin and Thomas Maronick.
Regarding the Plaintiffs’ motion for remote testimony, the Court reserved ruling pending more information from the parties. The Court acknowledged the general rule requiring in-person testimony under Rule 43(a), but also noted possible unique circumstances of this case where the Defendants’ unauthorized use of the Plaintiffs’ images may call for allowing remote testimony. However, the Court required the Plaintiffs to provide more details on which Plaintiffs intended to testify, the necessity of their testimony, and additional legal authority supporting remote testimony.
Image Valuation Expert Witness
Stephen Chamberlin holds a Bachelor of Laws and Economics degree from the University of New South Wales, which he completed in 1984. He has over 30 years of experience working full-time in the model and talent industry. Chamberlin is currently associated with Premier International Model Management as an international agent and negotiation director. He previously served in leadership roles at prominent talent agencies including LA Models Management, Warning Management Inc., and Michele Pommier Models. Chamberlin has also represented high-profile celebrity models and talent including Tyra Banks, Claudia Schiffer, and Paris Hilton.
Marketing Expert Witness
Thomas Joseph Maronick holds a Juris Doctor degree from the University of Baltimore School of Law, with an emphasis on corporate, business and consumer law. He is a member of the Maryland Bar. He also earned a Doctor of Business Administration degree from the University of Kentucky, as well as a Master of Science in Business Administration from the University of Denver, having majored in marketing.
Maronick is an Emeritus Professor of Marketing at Towson University College of Business and Economics, where he taught marketing, strategy, and research courses from 1987 to 2017. He previously held faculty positions teaching marketing at the University of Baltimore School of Business and Virginia Commonwealth University. Additionally, Maronick worked as the Director of the Office of Impact Evaluation at the Federal Trade Commission from 1980 to 1997. Since 1997, Maronick has worked as a marketing consultant and expert witness. He has provided expert services in over 150 cases involving consumer litigation, advertising, trademarks, and survey research.
Discussions by the Court
The Court then analyzed the Defendant’s motions in limine in sufficient detail under the Daubert standard and Rule 702.
For Stephen Chamberlin, the Defendant argued he was unqualified to provide an objective estimate of the value of the photographs because as the Plaintiffs’ agent, his role was to secure the highest possible price. The Defendant also asserted Chamberlin lacked experience pricing specific images in the adult entertainment industry and did not have a marketing degree. Additionally, the Defendant contended Chamberlin improperly inflated his calculations by using Plaintiffs’ highest paying previous jobs with organizations offering significantly more public exposure than Cajun Club. Defendant also appeared to argue Chamberlin improperly multiplied the damages as well.
In response, the Plaintiffs stated Chamberlin’s extensive experience as a models’ agent qualified him to testify on the value of the photographs. They contended he reliably applied industry principles to the Plaintiffs’ situation. The Plaintiffs argued Chamberlin’s testimony would help determine fair market value because negotiating modeling jobs requires specialized skills.
The Court found Chamberlin passed the Daubert test, except for the multiplier issue. Chamberlin’s 30 years of experience representing over 3000 models established he was qualified to testify on image value. The Court stated Chamberlin’s role negotiating for models demonstrated his industry knowledge, making him qualified despite the Defendant’s bias argument. The Court noted Chamberlin’s valuation methodology was well-explained. He based the hypothetical day rate on factors like Plaintiff models’ desirability, work history and the nature of the business seeking her services to calculate the day rate. However, some of the sample contracts used by Chamberlin, presumably as a basis for calculating a day rate, involved photoshoots that lasted longer than one day which, in turn, could lead to an overestimation of the Plaintiffs’ payment history for one-day photoshoots, though the Defendant could address the same through cross-examination.
The Court explained Chamberlin reliably identified four categories of “use” including advertising, social media, branding and coupon/third party that influenced costs beyond the day rate. While the Defendant cited cases excluding Chamberlin, the Court found them factually distinct. Chamberlin’s methodology here was laid out sufficiently to be admissible, though the Defendant could still challenge it on cross-examination. The Court denied excluding Chamberlin overall but reserved in part judgment as to Chamberlin’s use of a multiplier pending further explanation.
For Thomas Maronick, the Defendant argued his survey had flawed methodology because it did not use the actual promotional materials, omitted Plaintiff Brenda Geiger, and lacked respondent recruitment details. The Defendant asserted the survey was further flawed because respondents could not identify the models and ambiguous terms like “events” and “ads” were used.
The Plaintiffs responded that the survey did use Cajun Club’s actual materials and pictures of Geiger. They stated Maronick described the internet panel recruitment method. The Plaintiffs argued any lack of an open-ended name identification question only went to the weight of the survey rather than its admissibility. They contended the terms “events” and “ads” were accurate.
The Court found Maronick qualified as a marketing expert and professor. It determined he reliably applied this experience in designing the survey, which included Defendant’s materials and Geiger. The Court stated Maronick’s description of using an internet panel for recruitment was sufficient, with the details only going to weight not admissibility. Similarly, the Court found the lack of an open-ended identification and term choices were issues of weight for the jury to consider, not grounds for exclusion. Finally, the Court concluded the survey would assist the jury in determining whether Cajun Club used the pictures in a manner that is likely to cause confusion. For these reasons, the Court denied the motion to exclude Maronick.
Held
The Court reserved ruling on remote witness testimony, denied the motion to exclude Chamberlin but reserved in part its ruling on the multiplier issue, and denied the motion to exclude Maronick’s survey methodology.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
This case demonstrates that courts serve a gatekeeping function in screening expert witness testimony for relevance and reliability under Rule 702 and Daubert. Experts must be qualified, use reliable principles and methods, and provide testimony that assists the trier of fact. However, the admissibility threshold is meant to be liberal, with rigorous cross-examination as the appropriate tool for scrutinizing “shaky but admissible evidence.”
For expert Chamberlin, the takeaway is that extensive industry experience may establish qualifications to opine on specialized practices like image valuation. His method of calculating a hypothetical negotiation value based on prior work was deemed sufficiently reliable here considering the hypothetical was only necessary because of Defendant’s violation of copyright law.
For expert Maronick, the takeaway is that reasonable survey methodology focused on consumer perceptions can assist the trier of fact despite its shortcomings. Specific critiques often go to the weight of survey evidence rather than preclusion.
Overall, this case illustrates courts’ role in filtering unreliable principles and methods, but permitting testimony where an expert meets basic reliability and assists the trier of fact. Rigorous cross-examination is still vital for scrutinizing weaknesses.
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