Cream Records, Incorporated v. Jos. Schlitz Brewing Company, a Wisconsin Corporation, and Benton and Bowles Incorporated, a New York Corporation

Appellant Cream sued appellees alleging that music in a TV commercial prepared by Benton and Bowles to advertise Schlitz beer infringed appellant’s copyright on a popular rhythm and blues composition, “The Theme from Shaft.”

The jury found infringement. By agreement of the parties the issue of damages was submitted to the court which awarded Cream a total of $17,000. Cream appealed.

DAMAGES

Schlitz applied to Cream for a one-year license to use the Shaft theme music in its commercial. Cream quoted a fee of $100,000. (Cream conceded at trial, and the district court found, that the market value of such a license was $80,000.) After Schlitz failed to take a license, another manufacturer approached Cream for a license but withdrew when the Schlitz commercial was aired. There was testimony that use of a well-known popular song in a commercial destroys its value to other advertisers for that purpose.

The district court awarded Cream $12,-000 in damages for loss of the license fee. The court reasoned that the value of a license for use of the entire song for a year was $80,000, that only a small portion of the song was actually used in the Schlitz commercial, and the reasonable value…