Dash v. Mayweather et al

Filing 78

ORDER granting 61 Motion to Compel by plaintiff Anthony Lawrence Dash; granting 62 Motion to Compel by defendant World Wrestling Entertainment ; denying 62 Motion for Protective Order by defendant World Wrestling Entertainment. Court will grant the oral motion by parties to amend the scheduling order. Signed by Honorable Joseph F Anderson, Jr on 6/8/11.(mflo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Anthony Lawrence Dash,

)
)
Plaintiff,
)
)
v.
)
)
Floyd Mayweather, Jr., an individual;
)
Mayweather Promotions; Mayweather )
Promotions, LLC; Philthy Rich Records, )
Inc.; and World Wrestling Entertainment )
Inc.,
)
)
Defendants.
)
________________________________ )

C/A No.: 3:10-cv-1036-JFA

ORDER

This suit arises out of allegations by the Plaintiff that Defendant World Wrestling
Entertainment, Inc. (“WWE”) and Defendant Floyd Mayweather, Jr., and others, unlawfully
used his copyrighted music during part of two WWE events during which Mayweather made
an appearance. Now before the court is a discovery dispute between WWE and the Plaintiff.
The Plaintiff moves the court to compel WWE to respond to interrogatories numbered 3, 4,
9, 15, 16, 17, and 19 from his first set of interrogatories, as well as his requests to produce
numbered 2, 3, 4, 14, and 16 from his first request for production of documents. Plaintiff also
moves the court to compel WWE to respond to his request to admit numbered one. In
response, WWE filed a motion for a protective order, which would prevent it from having
to respond to these requests. It also moved the court to compel the Plaintiff to respond to its
requests to produce numbered 4, 5, 6, 7, 10, and 12, as well as moved the court to respond
to its interrogatories numbered 5 and 6.

The crux of this dispute centers on the Plaintiff’s attempt to seek damages pursuant
to 17 U.S.C. § 504(b), which allows a copyright owner to recover both actual damages and
any profits of the infringer that are attributable to the infringement. To determine profit
damages, the statute provides a burden-shifting approach in which the Plaintiff must first
present evidence of the infringer’s gross revenue and then the infringer has the burden to
prove his or her deductible expenses, as well as the elements of profit attributable to factors
other than the copyrighted work. 17 U.S.C. § 504(b). Because the statute allows the Plaintiff
to recover profits, assuming he can establish WWE infringed upon a copyright of his, the
Plaintiff seeks to recover information from WWE regarding all of the profits it derived from
Wrestlemania 24, which was held in 2008, and from the WWE Raw event held on August
29, 2009, the two events at which the Plaintiff alleges his copyrighted music was played.
WWE objects to having to turn over this information to the Plaintiff because it does not
believe the Plaintiff has established a rational relationship between his alleged music being
played and the profits it derived from these two events. As the Fourth Circuit has stated, a
copyright owner “has the burden of demonstrating some causal link between the
infringement and the particular profit stream before the burden-shifting provisions of §
504(b) apply.” Bonner v. Dawson, 404 F.3d 290, 294 (4th Cir. 2005). Because WWE both
planned and sold tickets to the two events in question without advertising that the Plaintiff’s
music would be a part of the shows, it does not believe the Plaintiff can establish a causal
link between his music and WWE’s profits from those two nights.
After considering WWE’s position, the court disagrees with their argument at this
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stage of the proceedings. During this discovery phase, the Plaintiff is not necessarily
representing that he is entitled to all of the profits WWE derived from the two events in
question. He is merely asking for WWE to produce information related to the gross revenue
generated from the two events in question so that he may better be able to decide which
profits to pursue as damages and which to forego. The legal authority provided by WWE
does not direct this court to require the Plaintiff to satisfy his burden of establishing a causal
link between the profits and his music at this stage of the litigation. Therefore, the court
orders WWE to respond to all of the Plaintiff’s discovery requests that seek information
regarding the profits generated by Wrestlemania 24 and the WWE Raw event on August 29,
2009 (Plaintiff’s First Set of Interrogatories ## 3, 4; Request to Produce ## 3, 4). WWE will
have ample opportunity to argue at a later date that the Plaintiff is not entitled to certain
profits.
Although there does not appear to be much of a dispute remaining between the parties
with respect to the Plaintiff’s attempt to seek information to support his claim for actual
damages (Plaintiff’s First Set of Interrogatories ## 9, 17, 19; Request to Produce ## 14, 16),
the court further orders WWE to respond to all of the Plaintiff’s discovery requests that seek
information regarding how WWE determines the amount of money it pays to license or use
music, or to secure performance rights necessary for the two events at issue in this case, as
well as any other information related to licenses or agreements it has executed with other
musicians. Likewise, to the extent WWE has not yet responded to the Plaintiff’s discovery
requests related to jurisdictional matters (Plaintiff’s First Set of Interrogatories ## 15, 16;
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Request for Production # 2; Request to Admit # 1), it is ordered to do so. Accordingly, the
court grants the Plaintiff’s motion to compel and denies WWE’s motion for a protective
order.
WWE filed its own motion to compel, asking the court to produce documents in
response to its requests to produce numbered 4S7, 10, and 12, as well as its interrogatories
numbered 5 and 6. After reviewing the parties’ briefs and hearing oral argument on these
matters, the court orders the Plaintiff to respond to these requests, although he may need to
wait to receive WWE’s responses to his discovery requests before he may be able to do so.
Nevertheless, the Plaintiff should respond to these requests as soon as he can and supplement
his responses when necessary. Accordingly, the court grants WWE’s motion to compel.
Lastly, at the hearing before the court, the parties made an oral motion to amend the
scheduling order to extend the current deadlines set forth in the scheduling order. The court
grants this motion as well and will issue a second amended scheduling order.
IT IS SO ORDERED.

June 8, 2011
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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