D'Pergo Custom Guitars, Inc. v. Sweetwater Sound, Inc.
Filing
139
///ORDER granting in part and denying in part 111 Motion for Summary Judgment; granting 112 Motion for Summary Judgment. Sweetwaters motion for summary judgment (doc. no. 111 ) is granted as to Counts IV and V but is otherwise denied. DPergos motion for summary judgment as to Count I (doc. no. 112 ) is granted. So Ordered by Chief Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
D’Pergo Custom Guitars, Inc.
v.
Civil No. 17-cv-747-LM
Opinion No. 2020 DNH 003
Sweetwater Sound, Inc.
O R D E R
D’Pergo Custom Guitars, Inc. (“D’Pergo”) brings this suit
against Sweetwater Sound, Inc. (“Sweetwater”), alleging claims
of copyright and trademark infringement and violations of the
New Hampshire Consumer Protection Act (“CPA”).
D’Pergo alleges
that Sweetwater used a copyrighted photograph of D’Pergo’s
trademarked custom guitar necks and headstock to promote and
sell Sweetwater products on Sweetwater’s website.
Sweetwater
moves for summary judgment on all of D’Pergo’s claims.
111.
Doc. no.
D’Pergo moves for summary judgment on its copyright
infringement claim.
Doc. no. 112.
The opposing party objects
to each motion.
STANDARD OF REVIEW
A movant is entitled to summary judgment if it “shows that
there is no genuine dispute as to any material fact and [that
it] is entitled to judgment as a matter of law.”
Fed. R. Civ.
P. 56(a).
In reviewing the record, the court construes all
facts and reasonable inferences in the light most favorable to
the nonmovant.
Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,
115 (1st Cir. 2013).
“Where the parties file cross-motions for
summary judgment, [the court] employ[s] the same standard of
review, but view[s] each motion separately, drawing all
inferences in favor of the nonmoving party.”
Fadili v. Deutsche
Bank Nat. Tr. Co., 772 F.3d 951, 953 (1st Cir. 2014).
BACKGROUND1
D’Pergo manufactures and sells custom guitars.
In 2003,
D’Pergo’s owner, Stefan Dapergolas, created a photograph
showcasing a number of D’Pergo’s unique guitar necks and
headstock, which D’Pergo published to its website (the
“Photograph”).
D’Pergo used the Photograph on its website from
2003 – 2006, after which it took down the Photograph and
replaced it with professional photography.
Sweetwater is a retailer that sells musical instruments,
including guitars, through its website.
In 2004, Sweetwater
copied the Photograph and published it on Sweetwater’s website.
More specifically, Sweetwater used the Photograph in its
The facts in this section are taken from Sweetwater’s
statement of undisputed material facts, see doc. no. 111-1 at 28, and are not challenged by D’Pergo, see doc. no. 125 at 1.
1
2
“Electric Guitar Buying Guide” (the “Buying Guide”), in the
section titled “Guitar necks explained.”2
The end of the Buying
Guide features a number of guitars from various manufacturers
for purchase (not D’Pergo’s), as well as a hyperlink to “Shop
for Electric Guitars.”
In January 2015, Dapergolas learned that Sweetwater was
using the Photograph in the Buying Guide.
D’Pergo later applied
for and was granted a copyright registration for the Photograph
from the Copyright Office.
In January 2016, D’Pergo contacted Sweetwater about the
Photograph and Sweetwater removed the Photograph from its
website.
D’Pergo subsequently trademarked its headstock design
depicted in the Photograph.
D’Pergo then brought this lawsuit in December 2017.
It
asserts five claims: (1) copyright infringement in violation of
the Copyright Act (Count I); (2) unfair competition in violation
of the CPA (Count II); (3) deceptive business practices in
violation of the CPA (Count III); (4) false designation of
origin and unfair competition in violation of the Lanham Act
(Count IV); and (5) trademark infringement in violation of the
Lanham Act (Count V).
The exact circumstances under which Sweetwater copied and
published the Photograph are unclear from the record.
Sweetwater represents that it has been unable to determine who
posted the Photograph in the Buying Guide in 2004.
2
3
DISCUSSION
Sweetwater moves for summary judgment on all of D’Pergo’s
claims.
D’Pergo moves for summary judgment on its copyright
infringement claim in Count I.
The opposing party objects to
each motion.
I.
Sweetwater’s Motion
Sweetwater states in its motion for summary judgment that
it concedes it used the Photograph without permission in the
Buying Guide.
It contends, however, that it is entitled to
summary judgment on D’Pergo’s claims for various reasons.
The
court addresses each claim in turn.
A.
Copyright Infringement (Count I)
“To establish copyright infringement under the Copyright
Act, ‘two elements must be proven: 1) ownership of a valid
copyright, and (2) copying of constituent elements of the work
that are original.’”
Johnson v. Gordon, 409 F.3d 12, 17 (1st
Cir. 2005) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340, 361 (1991)).
Once a plaintiff establishes both
elements, it may seek to recover statutory damages, actual
damages, and infringing profits under the Copyright Act.
U.S.C. § 504.
4
See 17
Sweetwater does not address the elements of a copyright
infringement claim in its motion.
Instead, it argues that it is
entitled to summary judgment because D’Pergo cannot recover
damages for that claim.
As Sweetwater notes, the court held in a previous order
that D’Pergo is not entitled to statutory damages because
D’Pergo did not register its copyright before Sweetwater’s
alleged infringement began.
U.S.C. § 412).
See doc. no. 43 at 8 (citing 17
Sweetwater contends that the record evidence
shows that D’Pergo cannot recover actual damages or infringing
profits.
D’Pergo argues that there is a genuine issue of
material fact as to whether it can recover either category of
damages.
1.
Actual damages
In a copyright infringement case, actual damages “consist
of all income and profits lost as a consequence of the
infringement.”
Bruce v. Weekly World News, Inc., 310 F.3d 25,
28 (1st Cir. 2002).
In addition, in “some cases, a hypothetical
license fee is a permissible basis for determining a plaintiff's
‘actual damages’ arising from an infringement.”3
Real View, LLC.
Actual damages may also include injury to the market value
of the copyrighted work. See World Wide Video, LLC v. Pagola,
No. CV 08-10391-RWZ, 2009 WL 10693580, at *1 (D. Mass. Oct. 8,
3
5
v. 20-20 Techs., Inc., 811 F. Supp. 2d 553, 556 (D. Mass. 2011);
see also 4 Melville B. Nimmer & David Nimmer, Nimmer on
Copyright, §§ 14.02[A]-[B] (1999).
A “reasonable licensing fee
is generally computed by determining the fair market value.
‘Fair market value’ is defined as the reasonable license fee on
which a willing buyer and a willing seller would have agreed for
the use taken by the infringer.”
World Wide Video, 2009 WL
10693580, at *1 (internal citations and quotation marks
omitted).
Sweetwater argues that there is no evidence in the record
that D’Pergo suffered actual damages.
Specifically, Sweetwater
states that D’Pergo’s claim for actual damages is based on a
hypothetical license fee, but that it cannot recover such
damages because: (1) it cannot prove that anyone would have paid
for a license to use the Photograph; and (2) D’Pergo’s damages
expert, Jeffrey Sedlik, relies on improper calculations and
assumptions to establish a hypothetical license fee.
As discussed in the court’s order denying Sweetwater’s
motion to exclude Sedlik, see doc. no. 138, D’Pergo may offer
Sedlik’s opinion at trial.
Sweetwater is entitled to cross-
examine Sedlik about his opinion and methodology, and present
2009).
here.
D’Pergo does not claim to have suffered such damages
6
the opinion of its rebuttal expert, Ellen Boughn.
Because
Sedlik’s opinion is not excluded, the court must take it into
account in ruling on Sweetwater’s motion.
Viewing the evidence
in the light most favorable to D’Pergo, there is a genuine issue
of material fact as to whether D’Pergo suffered actual damages
from Sweetwater’s copyright infringement.
Therefore, the court
denies Sweetwater’s motion for summary judgment as to D’Pergo’s
request for actual damages for its copyright infringement claim.
2.
Infringing Profits
A copyright owner is entitled to recover “any profits of
the infringer that are attributable to the infringement and are
not taken into account in computing the actual damages.”
§ 504.
“In establishing the infringer’s profits, the copyright owner is
required to present proof only of the infringer’s gross revenue,
and the infringer is required to prove his or her deductible
expenses and the elements of profit attributable to factors
other than the copyrighted work.”
Id. at (b).
The parties disagree as to the burden the Copyright Act
places on a plaintiff to prove infringing profits.
Sweetwater
argues that the majority of courts have held that § 504(b)
should not be read literally and have required a plaintiff to
establish a “legally significant connection” between the
infringement and a defendant’s revenues before the burden shifts
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to the defendant to show that its profits are attributable to
other factors.
See doc. no. 111-1 at 9 (citing cases).
It
contends that this principle is especially applicable in
“indirect profit” cases such as this, where the defendant is not
selling the product in the infringing photograph but instead
allegedly uses the photograph to increase the likelihood of the
sale of another product or service.
cases).
Id. at 12-14 (citing
Sweetwater further states that the First Circuit has
not enunciated an exact standard for connecting infringement to
profits, but it notes that the court in Jane Doe No. 1 v.
Backpage.com, LLC, required a plaintiff to “link the display of
a particular image to some discrete portion of the
publisher/infringer’s profits” in order to meet its burden under
§ 504(b).
817 F.3d at 28 (1st Cir. 2016), cert. denied, 137 S.
Ct. 622 (2017).
Sweetwater contends that D’Pergo cannot show a
non-speculative connection between the Photograph and
Sweetwater’s profits and, therefore, it is not entitled to
infringing profits.
D’Pergo counters that Sweetwater overstates a plaintiff’s
burden under § 504(b).
It notes that the First Circuit has
described a plaintiff’s burden under that section as “minimal”
and requires only that a plaintiff place a defendant’s gross
revenues into evidence.
See, e.g., Data Gen. Corp. v. Grumman
Sys. Support Corp., 36 F.3d 1147, 1173 (1st Cir. 1994),
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abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick,
559 U.S. 154 (2010); see also John G. Danielson, Inc. v.
Winchester-Conant Properties, Inc., 322 F.3d 26, 47 (1st Cir.
2003).
D’Pergo also argues that even if § 504(b) imposes a
higher burden on a plaintiff, it has shown that Sweetwater’s
gross revenues are connected to the infringement.
Regardless of whether a plaintiff must meet an initial
burden to a show a “legally sufficient causal link” between the
infringement and a defendant’s gross revenues, viewing the
evidence in the light most favorable to D’Pergo, there is a
genuine issue of material fact as to whether D’Pergo can
establish such a nexus.
D’Pergo does not merely point to
Sweetwater’s gross revenues and put the burden on Sweetwater to
prove that its profits are not attributable to the infringement.
Rather, through its expert, Dr. Michael Einhorn, D’Pergo offers
as evidence of Sweetwater’s gross revenues only the profits
Sweetwater purportedly derived from customers who purchased
electric guitars online after viewing the Buying Guide, which
contained the Photograph.4
See doc. no. 115-2 at 7-11.
The record, viewed favorably to D’Pergo, contains disputes
of fact as to whether all profits Sweetwater derived from
As with Sedlik, the court has held that Einhorn’s opinion
as to copyright infringement damages is not excluded. See doc.
no. 138.
4
9
purchases through the Buying Guide were attributable to the
Photograph.
Cf. Bouchat v. Baltimore Ravens Football Club,
Inc., 346 F.3d 514, 524 (4th Cir. 2003) (stating that the
defendants successfully carried their burden of demonstrating
the absence of a genuine issue of material fact as to the
existence of infringing profits when they proffered affidavits
showing that revenues were driven by factors unrelated to the
infringing logo design).
Viewing the evidence in the light most
favorable to D’Pergo, its claim for infringing profits is
sufficiently supported to survive summary judgment.
IvyMedia
Corp. v. ILIKEBUS, Inc., No. 15-11918-NMG, 2017 U.S. Dist. LEXIS
80547, at *2 (D. Mass. May 25, 2017) (allowing claim for
infringing profits to survive summary judgment even where
“evidence of damages and causation is tenuous at best”).
B.
Lanham Act Claims (Counts IV and V)
Counts IV and V allege claims for violation of § 1125(a) of
the Lanham Act.5
That section provides, in relevant part:
(1) Any person who, on or in connection with any goods
or services, or any container for goods, uses in
commerce any word, term, name, symbol, or device, or
any combination thereof, or any false designation of
Neither party addresses the difference between Count IV
(“False Endorsement/False Association”) and Count V (“Trademark
Infringement”) in its summary judgment briefing. Because the
parties’ briefing focuses on a broad argument applicable to both
claims, the court does not address the issue.
5
10
origin, false or misleading description of fact, or
false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake,
or to deceive as to the affiliation, connection, or
association of such person with another person, or as
to the origin, sponsorship, or approval of his or her
goods, services, or commercial activities by another
person . . .
Shall be liable in a civil action by any person who
believes that he or she is or is likely to be damaged
by such act.
15 U.S.C. § 1125(a).
“To succeed on a claim of trademark
infringement, a plaintiff must establish (1) that its mark is
entitled to trademark protection, and (2) that the allegedly
infringing use is likely to cause consumer confusion.”
Bos.
Duck Tours, LP v. Super Duck Tours, LLC, 531 F.3d 1, 12 (1st
Cir. 2008).
The “Lanham Act extends protection not only to words and
symbols, but also to ‘trade dress,’ defined as the design and
appearance of a product together with the elements making up the
overall image that serves to identify the product presented to
the consumer.”
Yankee Candle Co. v. Bridgewater Candle Co.,
LLC, 259 F.3d 25, 37–38 (1st Cir. 2001) (citing cases) (internal
quotation marks omitted).
“The primary purpose of trade dress
protection is to protect that which identifies a product’s
source.”
Id. at 38; see also I.P. Lund Trading ApS v. Kohler
Co., 163 F.3d 27, 35 (1st Cir. 1998).
11
D’Pergo has consistently represented that it seeks to
recover from Sweetwater for infringement of its trademark, not
its trade dress.
Based on these representations, Sweetwater
moves for summary judgment on Counts IV and V, contending that
the Headstock Design Trademark is not a “word, term, name,
symbol, or device, or any combination thereof” and, therefore,
is not entitled to trademark protection.
The court agrees.
And
because D’Pergo has waived a trade dress infringement claim in
this case, Counts IV and V must be dismissed.
The Headstock Design Trademark’s registration states that
the “mark consists of a product configuration consisting of a
two dimensional guitar headstock.”
Doc. no. 44-4 at 2.
Thus,
as the registration shows and D’Pergo alleges in its amended
complaint, the Headstock Design Trademark protects D’Pergo’s
“distinctive design mark . . . for use with electric guitars.”
Doc. no. 45 at ¶ 21.
D’Pergo alleges in the amended complaint
that “the Headstock Design Trademark has become exclusively
identified with” D’Pergo.
Id. at ¶ 67.
D’Pergo concedes that its Headstock Design Trademark, which
protects the “design” and “product configuration” of its guitar
headstock, can be classified as trade dress.
See doc. no. 125
at 23 (stating that D’Pergo could have brought trade dress
infringement claims).
D’Pergo argues, however, that even if the
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Headstock Design Trademark could be entitled to protection as a
trade dress, it is also entitled to protection as a trademark.
In support of its argument, D’Pergo cites the Supreme
Court’s decision in Qualitex Co. v. Jacobson Prod. Co., 514 U.S.
159 (1995).
In Qualitex, the Supreme Court stated:
The language of the Lanham Act describes that universe
in the broadest of terms. It says that trademarks
“includ[e] any word, name, symbol, or device, or any
combination thereof.” § 1127. Since human beings
might use as a “symbol” or “device” almost anything at
all that is capable of carrying meaning, this
language, read literally, is not restrictive.
Id. at 162.
D’Pergo notes that the United States Patent and
Trademark Office (“USPTO”) has authorized trademarks for the
designs of various shapes, including the Coca-Cola bottle
(Registration No. 696147), which shows that its headstock design
can be protected under trademark, rather than trade dress, law.
The Supreme Court’s holding in Qualitex does not support
D’Pergo’s contention that it can proceed under a theory of
trademark, rather than trade dress, infringement.
notes, the Lanham Act does not define trade dress.
As Sweetwater
Rather, a
cause of action for trade dress infringement arose because
courts held that the Lanham Act “embrace[d] not just word marks,
such as ‘Nike,’ and symbol marks, such as Nike’s ‘swoosh’
symbol, but also ‘trade dress’—a category that . . .
encompass[es] the design of a product.”
Wal-Mart Stores, Inc.
v. Samara Bros., 529 U.S. 205, 209 (2000).
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In other words,
trade dress became protectable under the Lanham Act because
courts assumed “that trade dress constitutes a ‘symbol’ or
‘device’ for purposes of the relevant sections.”
Id.
D’Pergo
offers no persuasive support for its theory that it can protect
its “product design” and “configuration”—categories that courts
have consistently held are protectable under the Lanham Act as
trade dress—under a theory of trademark infringement.
Id.;
Tracey Tooker & TT Ltd., Inc. v. Whitworth, 212 F. Supp. 3d 429,
434 (S.D.N.Y. 2016) (noting that the Lanham Act “protects trade
dress, which includes ‘what is at issue in this case: the design
or configuration of the product itself.’” (quoting Yurman
Design, Inc. v. PAJ, Inc., 262 F.3d 101, 114 (2d Cir. 2001));
see also 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair
Competition § 8:1 (5th ed. 2019) (stating that trade dress
encompasses “the shape and design of the product itself”).
D’Pergo’s argument concerning the Coca-Cola bottle’s shape
does not support its theory.
Although Coca-Cola registered its
bottle’s shape with the USPTO, several courts have noted that
the design of the Coca-Cola bottle is protected as a trade
dress.6
See Homeland Housewares, LLC v. Euro-Pro Operating LLC,
D’Pergo appears to suggest that registration with the
USPTO is prima facie evidence that its Headstock Design
Trademark is protectable as a trademark, rather than as trade
dress. To the extent D’Pergo makes that argument, it is
unavailing. Registration “on the principal register is ‘prima
facie evidence of the validity of the registered mark’ which
6
14
No. CV 14-03954 DDP MANX, 2015 WL 476287, at *5 (C.D. Cal. Feb.
5, 2015) (describing the Coca-Cola bottle shape as trade dress);
Clearline Techs. Ltd. v. Cooper B-Line, Inc., No. CV H-11-1420,
2012 WL 12893491, at *8 (S.D. Tex. July 2, 2012) (noting that
the shape of a Coca-Cola bottle is protected as trade dress);
Rauch Indus., Inc. v. Radko, No. 3:07-CV-197-C, 2007 WL 3124647,
at *7 (W.D.N.C. Oct. 25, 2007) (same).
And, although, as
D’Pergo notes, the USPTO has granted trademarks for shapes and
designs of guitars, those, too, are considered protectable as
trade dress.
See, e.g., 1 McCarthy, supra, § 8:7 (listing
“[e]xamples of trade dress which have been held to be
registerable as trademarks or service marks” and including “the
shape of a guitar head” and “the shape of a guitar body” (citing
Yamaha International Corp. v. Hoshino Gakki Co., 231 U.S.P.Q.
926 (T.T.A.B. 1986), aff’d, 840 F.2d 1572, 6 U.S.P.Q. 2d 1001
(Fed. Cir. 1988) and Gibson Guitar Corp. v. Paul Reed Smith
entitles the owner to a presumption that its mark is valid.”
Hillside Plastics, Inc. v. Dominion & Grimm U.S.A., Inc., No.
3:17-CV-30037-MGM, 2018 WL 4537205, at *7 (D. Mass. Aug. 6,
2018) (quoting 15 U.S.C. § 1115(a) (further citations and
quotation marks omitted)). Thus, registration of a trademark is
relevant to the validity of the mark, not whether it is
protected as a trademark or trade dress. See, e.g., BBK Tobacco
& Foods, LLP v. Galaxy VI Corp., No. 17-CV-4079 (BCM), 2019 WL
4747985, at *9 (S.D.N.Y. Sept. 30, 2019) (noting that
registration on the principal register is prima facie evidence
of the validity of both plaintiff’s trademarks and trade dress).
15
Guitars, LP, 423 F.3d 539, 76 U.S.P.Q. 2d 1372, 2005 FED App.
0387P (6th Cir. 2005), cert. denied, 126 S. Ct. 2355 (2006))).
To be clear, there is no dispute that the Lanham Act
protects trade dress, and that D’Pergo may have been able to
recover under a theory of trade dress infringement.
But, as the
court has noted in prior orders and D’Pergo does not dispute,
D’Pergo has waived any claim for trade dress infringement in
this case.
See, e.g., doc. no. 92 at 4-7.
D’Pergo’s Headstock
Design Trademark, which protects the “design” and “product
configuration” of its guitar headstock, is protectable as trade
dress, not a trademark.
Therefore, Sweetwater is entitled to
summary judgment on Counts IV and V.
C.
Consumer Protection Act Claims (Counts II and III)
D’Pergo asserts two claims under the New Hampshire Consumer
Protection Act, RSA § 358-A.
The CPA provides, in relevant
part:
It shall be unlawful for any person to use any unfair
method of competition or any unfair or deceptive act
or practice in the conduct of any trade or commerce
within this state. Such unfair method of competition
or unfair or deceptive act or practice shall include,
but is not limited to, the following:
I. Passing off goods or services as those of
another;
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II. Causing likelihood of confusion or of
misunderstanding as to the source, sponsorship,
approval, or certification of goods or services.
RSA 358-A:2.
D’Pergo alleges in Count II that Sweetwater’s use of the
Photograph in the Buying Guide effectively passed off D’Pergo’s
guitars as Sweetwater’s and caused a likelihood of confusion as
to the source of its goods.
Count III similarly alleges that
Sweetwater’s use of the Photograph in its Buying Guide caused a
likelihood of confusion as to the source of its guitars.7
Sweetwater contends that D’Pergo’s CPA claims are identical
to its Lanham Act claims.
It argues that because it is entitled
to summary judgment on D’Pergo’s Lanham Act claims, it is also
entitled to judgment on the CPA claims.
Sweetwater is mistaken.
The CPA is “a comprehensive
statute whose language indicates that it should be given broad
sweep.”
Ne. Lumber Mfrs. Assoc. v. N. States Pallet Co., 710 F.
Supp. 2d 179, 188 (D.N.H. 2010).
By “its plain language, the
scope of unlawful activity covered by the CPA is broader than
the trademark infringement claims governed by the Lanham Act.”
Id.
Thus, even when a defendant’s conduct may be insufficient
to establish a claim under the Lanham Act, it may still violate
the CPA.
Id. (granting plaintiff’s motion for summary judgment
As with its Lanham Act claims, the difference between
D’Pergo’s CPA claims is unclear.
7
17
on its CPA claim but denying plaintiff’s motion as to its Lanham
Act claim because “[r]egardless of what the scope of
[plaintiff’s] marks are,” defendant passed off his goods as
having approval or certification that they did not have).
For these reasons, Sweetwater is not entitled to summary
judgment on D’Pergo’s CPA claims.
D.
Summary
Sweetwater is entitled to summary judgment on D’Pergo’s
claims for trademark infringement (Counts IV and V).
It is not
entitled to summary judgment as to D’Pergo’s claim for violation
of the Copyright Act (Count I) or the CPA (Counts IV and V).
II.
D’Pergo’s Motion for Partial Summary Judgment
D’Pergo moves for summary judgment on its claim for
copyright infringement in Count I.
As discussed supra, to
prevail on a copyright infringement claim under the Copyright
Act, a plaintiff must prove two elements: “1) ownership of a
valid copyright, and (2) copying of constituent elements of the
work that are original.”
Johnson 409 F.3d at 17 (internal
quotation marks and citation omitted).
D’Pergo asserts that there is no genuine issue of material
fact that it has established both elements of a copyright
infringement claim.
In response, Sweetwater does not dispute
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that assertion.
Instead, it argues that D’Pergo is not entitled
to summary judgment on Count I because there is a genuine issue
of material fact as to whether D’Pergo is entitled to damages
for that claim.
Although, as discussed supra, the extent of D’Pergo’s
damages as to Count I is an open question, that fact does not
preclude the entry of summary judgment in favor of D’Pergo as to
liability for purposes of that claim.
To establish liability
for copyright infringement, a plaintiff must prove two elements.
Once a plaintiff establishes both elements, it may seek to
recover damages under the Copyright Act.
See § 504.
Because the undisputed facts in the record show that
Sweetwater infringed D’Pergo’s copyright, D’Pergo is entitled to
summary judgment on Count I.8
Whether and to what extent D’Pergo
is entitled to damages on that claim is a question that, for the
reasons discussed supra, is best left to a jury.
CONCLUSION
For the foregoing reasons, Sweetwater’s motion for summary
judgment (doc. no. 111) is granted as to Counts IV and V but is
Sweetwater does not raise any affirmative defense to its
infringement, such as fair use, which might otherwise preclude
summary judgment in D’Pergo’s favor.
8
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otherwise denied.
D’Pergo’s motion for summary judgment as to
Count I (doc. no. 112) is granted.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
January 6, 2020
cc:
Counsel of Record
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