Lewis Brisbois Secures Win in Photography Copyright Case After Judge Excludes Experts, Nixes Jury Trial, Vacates Injunction, and Awards Firm Costs

Atlanta, Ga./New York, N.Y. (March 30, 2021) - Atlanta Partner Jonathan D. Goins, along with New York Partner Brian Pete and Associate Devin S. Cohen, recently secured several significant rulings from Judge Denise Cote of the U.S. District Court for the Southern District of New York, including striking two of the plaintiff's reputable experts, granting summary judgment based upon the plaintiff’s inability to prove any damages evidence, cancelling the jury trial (which would have been one of the first during the COVID-19 pandemic, back in early November 2020) based upon the Seventh Amendment, vacating the plaintiff’s preliminary injunction, and lastly, awarding costs for firm client Afropunk, an international music festival company.

The Underlying Case

Lewis Brisbois’ client, Afropunk, is part of the portfolio of ESSENCE (a popular magazine publisher to over 1.6 million monthly subscribers and organizer of the largest annual African-American music festival). In 2015, Afropunk Festival hired several photographers on a contractual basis to shoot its annual music festival in Brooklyn, New York. The plaintiff was one of the photographers hired to shoot the festival, which annually boasts a stellar line-up of high-profile artists such as Lenny Kravitz, Lauryn Hill, and Janelle Monae.

In his complaint, the plaintiff accused Afropunk of copyright infringement and unfair competition for using his photographs beyond the scope of the parties’ license in advertising and promoting its annual festival online. At the early pleadings stage, Lewis Brisbois successfully obtained dismissal of the plaintiff’s statutory damages and unfair competition claims.

Subsequently, in November 2020, the Honorable Denise L. Cote of the U.S. District Court for the Southern District of New York granted the defendants’ Daubert motions to exclude two reputable and longstanding experts in intellectual property law, whom the plaintiff had presented to support his $17 million-dollar claim. One expert conducted a survey to confirm his own opinion that the plaintiff's photographs are distinctive. Another expert offered a calculation of the defendants’ profits from all of its music festivals over a four-year period and of the value of Afropunk's brand. Based on this expert testimony, the plaintiff sought to recover over $17 million from the defendants. Both experts have longstanding reputations in IP litigation, having served as experts regarding licensing and damages for over 25 years each, respectively. The court also canceled the trial of the matter and dismissed the plaintiff’s damages claim after determining that the plaintiff lacked any damages evidence, citing the Seventh Amendment law-equity dichotomy principle.

Lewis Brisbois’ Subsequent Victories and Award for Costs

Despite the dismissal of his expert witnesses and claim for damages, the plaintiff continued to litigate the action and sought a permanent injunction as to the use of his photographs. The court denied the plaintiff’s request and granted the defendants’ motion to vacate the preliminary injunction (which had been entered prior to Lewis Brisbois’ involvement), reasoning that the plaintiff failed to show irreparable harm. In December 2020, the court entered judgment in favor of the defendants and closed the case.

Then, in January 2021, the defendants filed a motion for attorneys’ fees and costs, contending that the plaintiff’s positions in this action bordered on - if not crossed - the line of frivolousness. They further argued that the plaintiff’s positions at least reflected objective speciousness, and thus required an award of fees and costs to advance considerations of compensation and deterrence.

Referring to the plaintiff’s multimillion-dollar damages claim as “outlandish and untethered to any reliable evidence,” the court entered a bill of costs in favor of the defendants. The case is now on appeal before the U.S. Court of Appeals for the Second Circuit.

In commenting on the case, Mr. Goins remarked, “Rarely does a court revoke any right to a jury trial when liability wasn’t reached, so this outcome sets precedent. We excluded statutory damages and attorneys’ fees under the Copyright Act as the plaintiff hadn’t registered his photographs until after the allegations of infringement. We then excluded actual damages or alleged profits via his two experts given the speculative figures. With nothing left to support any damages, liability became moot. It was a perfect scenario of results for our client that will likely be adopted as a defensive strategy going forward, especially as courts look to resolve the backlog of cases coming out of this pandemic.”

Mr. Goins is vice-chair of Lewis Brisbois' Intellectual Property & Technology and Entertainment, Media & Sports Practices. With over 17 years of experience, he serves as lead counsel in federal cases nationally for a wide range of clients involving trademarks, copyrights, trade secrets, right of publicity, entertainment, breach of software contracts, and related business torts.

Mr. Pete is a member of Lewis Brisbois' Labor & Employment, Complex Business & Commercial Litigation, and Professional Liability Practices. He is an experienced trial and appellate litigator, having handled complex employment and commercial matters from inception through trial and appeal, as well as arbitrations.

Mr. Cohen is a member of Lewis Brisbois' Labor & Employment Practice. He has served as a first-chair and second-chair in multiple jury trials, and received a Division Chief Award from the New York City Law Department in 2019 for his performance in the City’s Special Litigation Unit.