Jack MacKie v. Bonnie Rieser Seattle Symphony Orchestra Public Benefit Corporation, a Washington Nonprofit Corporation

This case of admitted copyright infringement leads us to clarify our longstanding rule regarding the quantum of causation necessary to obtain indirect profits damages. Jack Mackie, creator of the popular outdoor artwork in Seattle known as “The Dance Steps,” sued the Seattle Symphony Orchestra Public Benefit Corporation (the “Symphony”) for copyright infringement after the Symphony, without Mackie’s permission, used his artwork in a Symphony promotional campaign. Unfortunately, Mackie did not have a registered copyright on the work at the time of infringement and consequently could not take advantage of statutory damages for infringement, nor did he have evidence to sustain a claim for the Symphony’s direct profits. 17 U.S.C. § 412 (2). Instead, he was left to pursue claims for indirect profits and actual damages.

Mackie appeals an order granting summary judgment in favor of the Symphony on the issue of indirect profits. The district court reasoned that Mackie failed to demonstrate a tangible nexus between the infringing use and the Symphony’s revenues and, alternatively, held that any such computation of damages was far too speculative to survive a summary judgment motion.

In…