Bayoh v. Afropunk Fest 2015 LLC

Background

Mambu Bayoh sued Afropunk LLC, Matthew Morgan, and Jocelyn Cooper for copyright infringement. Bayoh alleged that Afropunk used 28 of his copyrighted photographs to promote its music festivals beyond the limited license he had granted. The opinion states that Afropunk paid Bayoh $1,200 in 2015 for photographs connected with its Brooklyn festival, and that Bayoh claimed the photographs could be used only on the festival website and Afropunk’s Instagram account.

The court had previously granted in part Defendants’ motion for summary judgment. Because Bayoh did not timely register the photographs, the court explained that he could not seek statutory damages or attorneys’ fees. His remaining damages theories were therefore limited to actual damages and disgorgement of Defendants’ profits. Actual damages generally may be measured by the fair market value of a license for the infringing use. Disgorgement requires profits attributable to the infringement.

Defendants filed a motion to exclude the testimony of Bayoh’s two damages experts under Federal Rule of Evidence 702 and related evidence rules.

Robert Wallace’s opinions

Robert Wallace, a brand consultant, concluded that Bayoh’s photographs were distinctive and more compelling than photographs Afropunk had used previously. He conducted an online survey in which separate groups viewed Bayoh photographs or earlier Afropunk photographs and answered questions about interest in attending events and purchasing merchandise.

The court excluded Wallace’s opinions about damages. Wallace did not use a methodology to measure how the photographs affected Afropunk’s revenues, did not study how the photographs were used for particular festivals, and did not distinguish the effects of licensed use from allegedly unlicensed use. The survey showed only that respondents found the displayed Bayoh photographs more engaging than the comparison photographs; it did not establish that the photographs caused particular revenues or profits.

The court also excluded other portions of Wallace’s proposed testimony because they addressed matters such as Defendants’ intent, whether they violated intellectual-property rights, marketing-industry standards, and whether they betrayed Afropunk’s mission. The court determined that some of these opinions invaded the jury’s role, lacked an adequate showing of expertise, or were irrelevant and likely to confuse or mislead the jury.

Weston Anson’s opinions

Weston Anson calculated Defendants’ profits from all festivals held over four years, including festivals in Paris, London, and Johannesburg. He recalculated Afropunk’s results by excluding an expense category labeled “other costs of operation,” producing a claimed total profit of $13,014,945. He also calculated an increase in Afropunk’s brand value of $4,432,773 between 2015 and 2018. In a supplemental report, he relabeled the profits calculation as “Profit Disgorgement” and the brand-value calculation as “Actual Damages.”

The court found several problems with Anson’s analysis. First, it included foreign festival revenues even though copyright laws generally do not apply outside the country, and Anson had not shown a basis for recovering damages based on those foreign activities. Second, Anson did not provide an opinion establishing a causal connection between the alleged infringement and Afropunk’s revenues. The court held that Bayoh could not simply present all revenue from 16 festivals over four years and ask the jury to assume that it was reasonably related to the photographs. Third, Anson measured the value of Afropunk’s brand rather than the fair market value of a license for Bayoh’s photographs. The court ruled that the brand-value calculation was not a valid measure of Bayoh’s actual damages and could confuse or mislead the jury.

The court also rejected Bayoh’s argument that discovery problems or incomplete business records justified assuming that all festival income was related to the photographs. The court stated that the record did not show that Bayoh had been wrongfully deprived of records to which he was entitled, and that Defendants’ informal business operations did not eliminate Bayoh’s burden to establish causation.

Ruling

Judge Denise Cote granted Defendants’ October 16 motion to exclude Bayoh’s expert testimony. The ruling excluded the proposed trial testimony of both Wallace and Anson. The opinion did not enter judgment on the copyright claim or otherwise state the final outcome of the lawsuit.