USDC W.D. Louisiana, December 7, 2010

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  • In copyright infringement action, court allows plaintiff to use defendants’ projected future profits as a factor in its monetary award calculation under 17 U.S.C. § 504.

Plaintiff, an architecture firm, sued defendants for copyright infringement, alleging that defendants unlawfully used plaintiff’s design in the development and construction of three apartment complexes.

Defendants filed a motion for partial summary judgment on plaintiff’s claim that it could base its monetary award calculation in part on defendants’ projected future revenues from the operation of the apartment complexes. The court examined the relevant award section of the Copyright Act, at 17 U.S.C. § 504, which allows a copyright owner to recover the “actual damages” it suffered as a result of the infringement, and “any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.”

In this statutory language, the court found no limit on what kind of profits plaintiff could recover, whether they be past, present or future. Further, the provision’s use of the word “any” before profits suggested no temporal limitation. Finally, the court found no governing or even persuasive precedent on point. The cases it did find suggested that future profits could be taken into account so long as a plaintiff presents evidence on future profits.

Here, plaintiff had presented expert testimony that purported to address defendants’ future revenues resulting from the operation of the apartment buildings. The court reserved for jury consideration whether projected future profits, as part of the monetary award, should be reduced by (1) the purchase price that defendants paid for the apartments, and (2) defendants’ future expenses resulting from operating the apartments.