(c) profits expert excluded for failure to tie profits to specific photos copied, instead of photos in general

Yellowpages Photos, Inc. v. YP,
LLC, 2019 WL 6033084, No: 8:17-cv-764-T-36JSS (M.D. Fla. Nov. 14, 2019)
YPPI sued YP alleging infringement
of YPPI’s copyrights, and sought disgorgement of the profits derived therefrom.
Its expert, Brown, was offered to opine on whether revenue received from the
sale of ads containing one or more of YPPI’s copyrighted images was reasonably
related to the use of the YPPI copyrighted images. “Brown is the principal of a
graphic design firm specializing in yellow page advertising, production,
billing, data management, and pagination software. Brown has worked for and on
behalf of small publishers and large independent yellow page publishers.” He
reviewed “samples of advertisements that appeared in YP-branded yellow page
directories, which ads contain one or more of YPPI’s copyrighted images.”
Brown’s expert report
explained that the yellow page industry considers multiple factors in creating
ads, one of which was “illustration and photos,” which “relates to creating
impact and visually telling a story about the business and what it sells.” Advertisers
value using images because photos and illustrations “give an ad the opportunity
to create interest, show off products, demonstrate services, and convey emotions
that can be seen with just a quick glance by a browsing user.” Brown stated
that “[w]ithout images, an ad is not useless, but it is certainly disadvantaged
by competing ads with supporting illustrations and photos found in the same
heading.” He explained that customers don’t want lengthy ads, especially where
an image can quickly convey the relevant information, and opined that images
sell ads.
Brown opined that “[b]ased on
the advertisements presented showing the inclusion of YPPI’s photographs, [he
could] state without a doubt, that th[e images] played a key supporting role in
the overall ad composition and assisted in telling the story behind products
and services offered by the advertiser.” Defendants’ customers, in approving
the ads, “certifie[d] that the advertisements presented would serve to promote
their company in a way that is in-line with their business practices, offerings
and identity.” In Brown’s experience, even where the customer already signed an
advertising contract, the customer is always promised “an ad proof where [the]
customer has a chance to approve an ad’s design and content or even cancel if
[the customer] feel[s] it d[id] not represent their business.” Thus, he opined
that “the use of YPPI’s images in the advertisements is related to the revenue
that Defendants received from their customers for Defendants’ publication of
the advertisements.”
The court excluded this
testimony. He could rely on his experience to be designated an expert, but that
didn’t mean that his opinion was based on sufficient facts and data. He testified
that he didn’t review any comparable images available for licensing in the
marketplace, didn’t compare the quality of YPPI’s photos to those available
from any other company, had no personal experience with defendants’ sales
process, didn’t know whether defendants’ customers saw mockups of ads before
purchasing them, didn’t review ads by defendants that didn’t have YPPI images, and
didn’t review information regarding how Yellow Pages prices its ads. He didn’t
have any evidence that any customers would not have purchased an advertisement
if it did not contain a YPPI image, didn’t know of any instances in which a
customer purchased an advertisement because it had a YPPI image, or where the
YPPI image helped sell the ad, or where a customer requested a YPPI image.  He didn’t any of the customers whose ads he
reviewed to learn whether the YPPI image influenced the customer’s decision to buy
the ad.
The court found that there
wasn’t enough knowledge underlying the opinion. Even if it had been impractical
to interveiw all defendants’ customers, he could have interviewed some. He
could have looked at non-YPPI images available to defendants.  He didn’t know whether YPPI’s images played
any part in any of defendants’ sales, so his opinion wasn’t supported by
sufficient facts or data.
Likewise, YPPI didn’t show that
his opinion was the product of reliable or accepted methods. “Simple reliance
on experience … is not sufficient to meet the Court’s gatekeeping requirement.”  Brown didn’t explain how he determined that
use of YPPI images was related to defendants’ profits. For example, he didn’t
review other available images and conclude that YPPI’s were better.  He didn’t even state that certain photo
features, like color or angle, were particularly useful, and that YPPI photos
had those feartures. He didn’t argue that being able to draw from YPPI’s pool
of images increased the database of potential images available, attracting
customers who desired a large number of options. This wasn’t a methodology.
[The real question here is
about baseline. Are we being asked whether the presence of images is important
to ads, or whether the presence of these images is important? I have to admit,
I’d be a bit more inclined to give the copyright owner the benefit of the doubt
on this one, assuming infringement is shown. 
It may well be that a different image would have been just as good as
the infringed image, but the fact of the matter is that the infringing image
was the one used. If images in general are important to ads, shouldn’t the
defendant bear the risk here?  At the
very least, why wouldn’t the burden on the defendant to show that the
expressive characteristics of the infringing image weren’t relevant to the
profits from the ad?]

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