Facedown on the canvas, the boxer slowly opens his eyes. His ears still ringing from the punch that knocked him down, he can vaguely hear the referee counting, “1! 2! 3! 4!…” Meanwhile, the champion boastfully circles the ring, pumping his chest in celebration of imminent victory. The referee continues the count, “5! 6! 7!…” Does the opponent have the strength to stand up? In this case, the opponent is rapper Anthony Lawrence Dash, and before the referee reaches “10,” Dash rises up to face boxing great Floyd Mayweather, Jr. for another round in the ring known as America’s judicial system.
This is not the first time we’ve covered the Dash v. Mayweather case – avid readers will recall our discussion of the first installment of this case in the June 2012 newsletter. Here’s a quick recap for the uninitiated: In 2005, Dash wrote a musical track called “Tony Gunz Beat” (“TGB”), which Mayweather then incorporated into his own rap song, entitled “Yep,” without permission. Then, in 2008 and 2009, Mayweather used “Yep” as his entrance music at two World Wrestling Entertainment, Inc. (“WWE”) events aired on pay- per-view and sold on DVD. Dash subsequently sued Mayweather, his promoters, his record label, and the WWE for copyright infringement in April 2010. Two years later, the district court granted the defendants’ motions for summary judgment, ruling that Dash was not entitled to actual damages, profits of the infringer, or statutory damages, and dismissed the case. In short, Dash failed to present any evidence demonstrating a causal link between the alleged infringement and the enhancement of a revenue stream at the WWE events in question.
As it turns out, the district court’s ruling was only the first round in this barnburner of a bout. Bobbing and weaving, Dash threw a counterpunch at Mayweather by filing a Motion to Reconsider on June 7, 2012. Unfortunately for Dash, the blow never landed, and the district court once again rang the bell by denying the motion and refusing to “relitigate matters previously decided by the court.” Thus, for the second time, Dash was on the ropes.
But like any spirited prizefighter, Dash refused to throw in the towel. Dash jumped up from the canvas and appealed to the Fourth Circuit on the issue of his entitlement to actual damages and the infringer’s profits under 17 U.S.C. § 504(b). However, Round 3 went just like the first two, and this Rocky wannabe was dealt a knockout blow in September when the Fourth Circuit affirmed the district court’s grant of summary judgment in favor of the defendants (Dash v. Mayweather, 731 F.3d 303 (4th Cir. 2013)).
Regarding actual damages, the court held that Dash did not present sufficient nonspeculative evidence to show that TGB had a fair market value. Rather, to support his claim for lost licensing fees, Dash relied exclusively on his cornerman, an expert who claimed that Dash would have earned up to a $3,000 licensing fee for TGB, a figure based upon fees paid by the WWE event promoters to use the works of other established artists. However, the court held that the works by these established artists were not comparable to TGB and Dash failed to prove a fair market value for his work, compounded by the fact that Dash had never sold or licensed one of his beats to … well, anyone.
Regarding profit damages, the court held that Dash failed to prove the defendants’ gross revenues were reasonably related to the infringement, particularly since consumers and businesses paid the promoters prior to discovering that “Yep” would be played. Finally, Dash gave Mayweather a walkover by stipulating that he had no evidence that the playing of “Yep” at the WWE events increased any of the defendants’ revenue streams.
With this appellate punch, “Money” Mayweather finally has knocked out his opponent. But has Dash kissed the canvas for the last time? Check back in with Three Point Shot during the rest of 2014 and we’ll see if the highest court in the land has anything to say about it.