The fiery dispute in this case comes on the wings of a disagreement about dragon-themed boot buttons. In April 2021, Plaintiff, Edward Beard Jr. (“Beard”), filed a complaint against Defendants Arik Helman (“Helman”)1Link to the text of the note; Son of Sandlar, LLC; Son of Sandlar, Inc., Sandlar Manufacturing, LLC; and Twisted World, LLC (“Defendants”) for direct copyright infringement, contributory copyright infringement, vicarious infringement, and breach of contract.
Defendants filed a motion to exclude the testimony of Dr. Wesley Austin while Plaintiff Edward P. Beard Jr. filed a motion to exclude the testimony of Cari Freno and Julie Newman.
Economics Expert Witness
Dr. Wesley Austin is an Associate Professor of Economics at University of Louisiana at Lafayette and has been in that position for eleven years. He also has worked as an expert witness in various litigation since 2009.
Austin holds a Bachelor of Arts in Finance and a Master of Arts in Economics—both from the University of South Florida. He received a Ph.D. in Economics from the University of South Florida, as well. His Ph.D. studies focused on health economics and public sector and labor economics and statistics.
Art History Expert Witness
Cari Freno is the chair of the art and art history department at Ursinus College. She has twenty-five years of experience “working with art materials and processes including drawing, carving, and casting” and has served as an art teacher since 2010.
Freno has a Bachelor of Fine Arts from the University of the Arts and a Master of Fine Arts from Virginia Commonwealth University.
Licensing Expert Witness
Julie R. Newman is the Founder and CEO of Jewel Branding & Licensing, Inc. She has been a licensing agent for the past twenty-two years and represents artists whose artwork is used in manufacturers’ products. According to Newman, she “has developed licensing programs around the globe in categories such as health & beauty, stationery, apparel, gift, and home decor.” She holds a Bachelor of Arts in Finance from the University of Akron.
Discussion by the Court
Wesley Austin
The purpose of Austin’s “report is to estimate [Beard’s] economic damages/losses” from the alleged copyright infringement.
Challenges to Austin’s Qualifications
While Defendants did not explicitly question the qualifications of Austin, their entire argument is premised on their belief that he “lacks experience or expertise in negotiating or structuring licensing deals, which is critical for providing a reliable opinion on reasonable royalties in the context of copyright infringement.”
While Austin has an impressive background in economics, he has no experience, knowledge, or training relating to licensing agreements of the kind at issue in this case.
So, while he may be qualified to testify regarding general economic matters, he lacked the requisite qualifications to be admitted as an expert on economic damages of the more specific area of art licensing agreements.
Challenges to Austin’s Reliability
Much of the Defendants’ challenge to Austin’s proposed expert testimony focused on his alleged unreliability. They noted that the focus of Austin’s analysis is improperly focused on what Plaintiff would have demanded, not what the parties would have negotiated.
The Court agreed. Austin’s analysis is entirely focused on what Beard would have wanted, not what Helman would have offered.
Be that as it may, the Defendants’ concerns are chiefly with Austin’s methodology and lack of an independent investigation.
The lack of investigation is shown by the fact that there is no evidence in the information provided to Austin that Beard ever received an advance against royalties (AAR) on a per year or per product basis, nor that an upcharge for color variants using his products was ever given. While Plaintiff is correct in noting that there is a basis for determining that an AAR is possible, Defendants contention is that the type of AAR which forms the basis of both of Austin’s scenarios (one granted for that high an amount on a per year, per product, and per color variant basis) has no basis in the record provided to Austin. That, specifically, is what the Court sees as having no evidence in the record to support a basis for an economic analysis and one of the things Austin should have conducted an independent investigation into.
Relevance/Fit of Austin’s Analysis of Loss related to the Boot Buttons
As a final note on Austin, the Defendants pointed out that he included lost future income for the Dragon Boot Buttons in his report.
On March 06, 2024, the Court stated that “Helman is a joint author of the dragon buttons, and he cannot be sued for copyright infringement.”
Since that opinion was released, more than one and half years have passed and Plaintiff has not amended its complaint to include a claim for accounting for profits from the boot buttons—a remedy that remains as viable as it was when it was mentioned in that opinion.
Unless and until that motion and amended pleading are filed, Austin’s proposed analysis relating to the boot buttons is irrelevant to the claims currently within this case.
The Court viewed Austin’s potential testimony, and will view any testimony proffered on this topic, irrelevant until the amended complaint is filed.
Cari Freno
The purpose of Freno’s report is to “provide an opinion of the visual qualities appertaining to the items related to this case.”
1. Challenges to Freno’s Qualifications
Defendants’ chief issue with Freno’s report is that she “references no scholarly sources, industry standards, or error-rate analyses to validate her approach.” That is, their main concern is that her expertise is not scientific, and therefore not reliable.
Freno has established that she has experience working within the art field and that is a sufficient basis for her expert opinion.
Defendants did raise the valid point that while Freno has established an extensive background in the field of art, she provided no evidence that she has experience in the fields of leatherwork or metalwork. Further, she provided no mention that she has ever had experience turning a drawing or model into a physical product like an applique or a metal button. Nevertheless, this experience could be inferred from her previous work, and excluding the testimony of Freno based on her qualifications is not warranted.
2. Challenges to Freno’s Lack of Investigation
Freno’s report made it clear that she relied extensively on conversations with Helman. Freno provided no indication that she ever independently verified what Helman told her and she told the Court, explicitly, at the Daubert hearing that she did not conduct an investigation into what Helman told her.
Freno’s visual analysis concluded by describing the differences between the various designs. It was only based on her extensive conversations with Helman that she ultimately concluded which design was based on the other.
The obvious reliance on Helman’s opinions cannot be ignored by the Court—especially when it is admitted that nothing was done to verify the information. Ultimately, Freno’s lack of an independent investigation into what was told to her ultimately renders her testimony as an expert unreliable.
Julie Newman
Newman stated that the “primary purpose of [her] report is to summarize a licensing arrangement that would be typical for Helman and Beard to enter into.”
Newman spent around half of her report arguing that many of the points made in the information given to Austin’s were “misleading and not based in real world licensing agreements.”
Challenges to the Reliability of Newman’s Opinion
Plaintiff’s chief concern with Newman’s report is its reliability. He first pointed to the fact that she did not rely on “any peer-reviewed or scientific model” and only relied on her extensive experience in the licensing field to come to her conclusions.
The Court disagreed. Plaintiff seemed to want a peer reviewed paper or universally accepted formula to provide the basis for an expert report, but that was not required. Far from pulling figures out of thin air, she based her opinion on more than two decades of experience working to create licensing agreements like the one that could have been made in this case.
She concisely explained in her report how and why she reached the conclusion that a 10% royalty rate was likely and that this would lead to royalties owed in the amount of $400.
Challenges to the Fit of Newman’s Opinion
According to the Plaintiff, because the “report fails to explain how her licensing experience anecdotes align with the specific market for this particular Dragon Design, or the specific infringement scenario before the Court – her report thus failed the “fit” test.”
Despite Plaintiff’s implication that there is a lack of fit due to the lack of science used in the report, all that must be done for the fit element is for the trial judge to determine whether the testimony has “a reliable basis in the knowledge and experience of [the relevant] discipline.”
Here, Newman’s report has more than a sufficient reliable basis for her opinions—she has worked within the relevant field on the exact documents at issue for over two decades. The fact it is an experience-based opinion rather than a scientific based one, did not affect the ability of the expert to provide her report or testimony in this case.
Finally, when Newman stated that she has worked with artists as “a licensing agent” for twenty-two years, she also explicitly stated that she has worked on several art licensing agreements. She set forth these anecdotes almost immediately prior to laying out her conclusion and explained how her conclusion is based on her prior experiences.
Held
- The Court granted Defendants’ motion to exclude the opinions and testimony of Dr. Wesley Austin.
- The Court granted in part and denied in part Beard’s motion to exclude the expert testimony of Cari Freno and Julie Newman- the motion to exclude was granted as to Cari Freno but denied as to Julie Newman.
Key Takeaway:
Experience is a valid basis to provide an expert opinion. The scientific factors simply are not applicable, when the reliability of testimony from a practical expert depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.
When an expert relies solely or primarily on experience, they must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.
Case Details:
| Case Caption: | Beard V. Helman |
| Docket Number: | United States District Court, Pennsylvania Middle |
| Court Name: | 4:21cv680 |
| Order Date: | November 12, 2025 |
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