Judge Engelmayer: Copyright Damages from Brief Display of Plaintiff's Art in Kendrick Lamar Music Video Are Not Inherently Speculative

In an opinion Wednesday, Judge Engelmayer denied a motion by musician Kendrick Lamar (and other defendants) for partial summary judgment in a copyright case brought by an artist claiming that his work was displayed without authorization in the music video "All the Stars" from the Black Panther movie. The plaintiff hadn't registered his work and so wasn't eligible for statutory damages.  The defendants argued that any actual damages -- profits gained from the alleged wrongdoing -- were inherently too speculative, and should be rejected even before discovery:

Regardless of what Plaintiff may try to point to or obtain through discovery to show a connection between the alleged 19-second use of the Artwork toward the end of the Video and any profits generated by the Single and Album . . . common sense and logic demonstrate that virtually endless combinations of reasons – wholly unrelated to the alleged use – could account for people’s decisions to stream or buy the Single or Album, and, thus, any profits that these works generate . . . especially in light of (a) Lamar and Rowe’s popularity and accomplishments, (b) the success of the Single before the Video’s release, (c) the success of many tracks on the Album other than the Single, and (d) the Film’s success, social and cultural impact, and use of the Single in its closing credits, all of which are indisputable. Plaintiff’s causation theory is all the more speculative in light of the added uncertainty as to whether people who play the Video actually watch it instead of just listening to the audio, and, if they do watch, whether they do so until the final minute when the alleged use occurs.

Judge Engelmayer disagreed, emphasizing that the primary cases relied upon by the defendants were decided after discovery:

[T]he courts in [the defendants' cases] entered judgment for defendants on the issue of a causal nexus only after close review of a fully developed factual record. These precedents commend a similar approach here, as opposed to granting summary judgment at the discovery threshold. The Court appreciates the possibility, as defendants forecast, that. . . [plaintiff]  ultimately will prove unable to demonstrate non-speculatively the required nexus between defendants' alleged infringement and their profits. But, without discovery, including expert discovery, it is premature to so assume.