Plaintiff Amy Lee Sullivan is suing Defendant Flora, Inc. for copyright infringement of 33 illustrations that she created for Flora as part of two advertising campaigns.
Sullivan offered the testimony of a financial evaluation expert, Dennis Kleinheinz. Sullivan wanted to present Kleinheinz’s calculations on Flora’s profits but the Court reserved the ruling on Sullivan’s motion regarding the testimony of Dennis Kleinheinz when Flora filed its objections.
Plaintiff also retained Danny Mager and Flora filed objections against his opinion that each additional use of each of Sullivan’s registered illustrations have a market value of between $3,000.00 and $6,000.00.
Marketing Expert Witness
Danny Mager is employed by Staples Marketing, LLC, which does business as AFFIRM Agency. The AFFIRM Agency is a Milwaukee County, Wisconsin full-service advertising agency originally established in 1985. Mager is a principal and the marketing director of AFFIRM. He is a 50% owner of that company as well. Mager has 30 years of creative, marketing and advertising industry experience. He is a member of various advertising and marketing industry professional and trade associations including the American Advertising Federation-Madison Chapter, the Agency Management Institute, Second Wind Agency Network and the Business Marketing Association.
Accounting Expert Witness
Dennis Kleinheinz is a partner with the Middleton, Wisconsin CPA firm of Meicher CPAs, LLP. He received his Bachelor in Business Administration degree from the School of Business at the University of Wisconsin-Madison. Kleinheinz graduated in 1977 “with distinction”.
Discussion by the Court
The Court held that Sullivan may not rely on Mager to establish that any of the individual illustrations have independent economic value. Mager’s testimony may be relevant to whether or not any individual illustration constitutes a “work,” but it does not conclusively show that any illustration is not nonetheless part of a “compilation.”
Even if Sullivan establishes with other evidence that all of the illustrations have independent economic value, Mager’s opinion would not help to establish the economic value for a particular illustration because Mager did not base his opinion on any independent evaluation of the specific illustrations at issue. So if Sullivan wanted to rely on Mager to place a value on each illustration, Mager would have needed to amend his report to conduct an evaluation of each illustration. Without such an evaluation, the Court held that Mager’s opinion that each use of an illustration has a market value of $3,000 to $6,000 has no foundation and is therefore inadmissible.
Moreover, Flora also filed a motion to exclude expert testimony on statutory damages. The only expert testimony that Sullivan wishes to present on statutory damages is Mager’s opinion that the market value of each illustration is $3,000 to $6,000. The Court explained in its ruling on Sullivan’s motion regarding Danny Mager why that opinion is not admissible. The Court, therefore, granted this motion.
Held
The Court held that Sullivan may not rely on Mager’s opinion that each use of each illustration has a market value of $3,000 to $6,000.
Key Takeaway:
Finding that an illustration is entitled to a separate statutory damages award requires first finding that the illustration has independent economic value. Thus, Mager’s testimony, which assumed that Sullivan’s illustrations were each entitled to a separate statutory damages award (i.e., assumed the illustrations had independent economic value), cannot now (without more) be used to establish that those same illustrations have independent economic value in the first place. Mager’s testimony may be relevant to whether or not any individual illustration constitutes a “work,” but it does not conclusively show that any illustration is not nonetheless part of a “compilation.”
Mager’s testimony assumed that each of the 33 illustrations were entitled to a separate statutory damages award but he did not base his opinion on any independent evaluation of the specific illustrations at issue. Indeed, Mager did not even know how many illustrations there were, stating “I think it was 44 illustrations.”
Case Details:
| Case Caption: | Sullivan, Amy V. Flora, Inc. |
| Docket Number: | 3:15cv298 |
| Court: | United States District Court for the Western District of Wisconsin |
| Order Date: | July 29, 2024 |
Leave a Reply