Monday, November 18, 2019

(c) profits expert excluded for failure to tie profits to specific photos copied, instead of photos in general

Yellowpages Photos, Inc. v. YP, LLC, 2019 WL 6033084, No: 8:17-cv-764-T-36JSS (M.D. Fla. Nov. 14, 2019)

YPPI sued YP alleging infringement of YPPI’s copyrights, and sought disgorgement of the profits derived therefrom. Its expert, Brown, was offered to opine on whether revenue received from the sale of ads containing one or more of YPPI’s copyrighted images was reasonably related to the use of the YPPI copyrighted images. “Brown is the principal of a graphic design firm specializing in yellow page advertising, production, billing, data management, and pagination software. Brown has worked for and on behalf of small publishers and large independent yellow page publishers.” He reviewed “samples of advertisements that appeared in YP-branded yellow page directories, which ads contain one or more of YPPI’s copyrighted images.”

Brown’s expert report explained that the yellow page industry considers multiple factors in creating ads, one of which was “illustration and photos,” which “relates to creating impact and visually telling a story about the business and what it sells.” Advertisers value using images because photos and illustrations “give an ad the opportunity to create interest, show off products, demonstrate services, and convey emotions that can be seen with just a quick glance by a browsing user.” Brown stated that “[w]ithout images, an ad is not useless, but it is certainly disadvantaged by competing ads with supporting illustrations and photos found in the same heading.” He explained that customers don’t want lengthy ads, especially where an image can quickly convey the relevant information, and opined that images sell ads.

Brown opined that “[b]ased on the advertisements presented showing the inclusion of YPPI’s photographs, [he could] state without a doubt, that th[e images] played a key supporting role in the overall ad composition and assisted in telling the story behind products and services offered by the advertiser.” Defendants’ customers, in approving the ads, “certifie[d] that the advertisements presented would serve to promote their company in a way that is in-line with their business practices, offerings and identity.” In Brown’s experience, even where the customer already signed an advertising contract, the customer is always promised “an ad proof where [the] customer has a chance to approve an ad’s design and content or even cancel if [the customer] feel[s] it d[id] not represent their business.” Thus, he opined that “the use of YPPI’s images in the advertisements is related to the revenue that Defendants received from their customers for Defendants’ publication of the advertisements.”

The court excluded this testimony. He could rely on his experience to be designated an expert, but that didn’t mean that his opinion was based on sufficient facts and data. He testified that he didn’t review any comparable images available for licensing in the marketplace, didn’t compare the quality of YPPI’s photos to those available from any other company, had no personal experience with defendants’ sales process, didn’t know whether defendants’ customers saw mockups of ads before purchasing them, didn’t review ads by defendants that didn’t have YPPI images, and didn’t review information regarding how Yellow Pages prices its ads. He didn’t have any evidence that any customers would not have purchased an advertisement if it did not contain a YPPI image, didn’t know of any instances in which a customer purchased an advertisement because it had a YPPI image, or where the YPPI image helped sell the ad, or where a customer requested a YPPI image.  He didn’t any of the customers whose ads he reviewed to learn whether the YPPI image influenced the customer’s decision to buy the ad.

The court found that there wasn’t enough knowledge underlying the opinion. Even if it had been impractical to interveiw all defendants’ customers, he could have interviewed some. He could have looked at non-YPPI images available to defendants.  He didn’t know whether YPPI’s images played any part in any of defendants’ sales, so his opinion wasn’t supported by sufficient facts or data.

Likewise, YPPI didn’t show that his opinion was the product of reliable or accepted methods. “Simple reliance on experience … is not sufficient to meet the Court’s gatekeeping requirement.”  Brown didn’t explain how he determined that use of YPPI images was related to defendants’ profits. For example, he didn’t review other available images and conclude that YPPI’s were better.  He didn’t even state that certain photo features, like color or angle, were particularly useful, and that YPPI photos had those feartures. He didn’t argue that being able to draw from YPPI’s pool of images increased the database of potential images available, attracting customers who desired a large number of options. This wasn’t a methodology.

[The real question here is about baseline. Are we being asked whether the presence of images is important to ads, or whether the presence of these images is important? I have to admit, I’d be a bit more inclined to give the copyright owner the benefit of the doubt on this one, assuming infringement is shown.  It may well be that a different image would have been just as good as the infringed image, but the fact of the matter is that the infringing image was the one used. If images in general are important to ads, shouldn’t the defendant bear the risk here?  At the very least, why wouldn’t the burden on the defendant to show that the expressive characteristics of the infringing image weren’t relevant to the profits from the ad?]

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