Cream Records, Inc. v. Joseph Schlitz Brewing Co., and Benton & Bowles, Inc.

864 F.2d 668 1989 Copr.L.Dec. P 26,369 , 9 U.S.P.Q.2d 1568 CREAM RECORDS, INC., Plaintiff-Appellant, v. JOSEPH SCHLITZ BREWING CO., and Benton & Bowles, Inc., Defendants-Appellees. No. 85-5986. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 12, 1988. Decided Jan. 6, 1989. Gerald B. Weiner, Los Angeles, Cal., for plaintiff-appellant. Anthony Liebig, Los Angeles, Cal., for defendants-appellees. Appeal from the United States District Court for the Central District of California. Before NORRIS, HALL and KOZINSKI, Circuit Judges. PER CURIAM: 1 Cream Records, Inc. appeals the district court's award of damages against Benton & Bowles, Inc. Cream contends that the district court's determination of the proportion of defendant's profits attributable to defendant's infringement of plaintiff's copyright was clearly erroneous. We review the district court's apportionment of profits for clear error. See Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 518 (9th Cir.1985). 2 1. Cream first contends that since Benton & Bowles failed to introduce evidence of costs and of profits not attributable to the infringement, the defendant's gross revenue…

dissenting:

The majority concludes that the district court committed clear error in awarding plaintiff $1,750.00 in profits attributable to defendant Benton & Bowles’ copyright infringement. The court vacates the district court’s apportionment and instructs the lower court to award plaintiff more than a de minimis portion of the $175,872.78 defendant earned from the commercial. But the court fails to acknowledge that this disposition is flatly contrary to the law of this case that “the infringement ‘was minimal,’ consisting principally of a ten-note ostinato, and that the infringing material did not add substantially to the value of the commercial.” Cream Records, Inc. v. Jos. Schlitz Brewing Co., 754 F.2d 826, 828 (9th Cir.1985) (emphasis added).

“Under the ‘law of the case’ doctrine, a court is generally precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case.” United States v. Silverman, 859 F.2d 1352 , 1353 n. 1 (9th Cir.1988). The majority does not so much as even mention this doctrine, nor does it attempt to explain why the district court committed clear error in awarding plaintiff one percent of Benton & Bowles’ profit…

Cream Records, Inc. appeals the district court’s award of damages against Benton & Bowles, Inc. Cream contends that the district court’s determination of the proportion of defendant’s profits attributable to defendant’s infringement of plaintiff’s copyright was clearly erroneous. We review the district court’s apportionment of profits for clear error. See Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 518 (9th Cir.1985).

1. Cream first contends that since Benton & Bowles failed to introduce evidence of costs and of profits not attributable to the infringement, the defendant’s gross revenue from the commercial is the appropriate measure of profits. We agree. Under section 504(b) of the Copyright Act, 17 U.S.C. § 504 (b) (1982), “the copyright owner is required to present proof only of the infringer’s gross revenue, and the in-fringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.” Cream met its burden when it introduced evidence establishing that Benton & Bowles was paid $175,872.78 for producing the commercial; the defendant introduced no evidence of either its deductible…