Brooks v. Dash ( 2021 )

20-1488-cv
Brooks v. Dash
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in
a document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 7th day of July, two thousand twenty-one.
PRESENT: PIERRE N. LEVAL,
JOSÉ A. CABRANES,
WILLIAM J. NARDINI,
Circuit Judges.
EDWYNA W. BROOKS d/b/a EW BROOKS BOOKS LLC,
Plaintiff-Appellee, 20-1488-cv
v.
DAMON ANTHONY DASH and POPPINGTON LLC
d/b/a DAMON DASH STUDIOS,
Defendants-Appellants.
FOR PLAINTIFF-APPELLEE: Christopher Brown, Brown & Rosen
LLC, Boston, MA.
FOR DEFENDANTS-APPELLEES: Natraj S. Bhushan, Turturro Law, P.C.,
Brooklyn, NY.
Appeal from a final judgment of the United States District Court for the Southern District
of New York (Jed S. Rakoff, Judge).
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UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.
Defendants-Appellants Damon Dash and Poppington LLC, d/b/a Damon Dash Studios
(hereinafter “Dash”), appeal an April 14, 2020 judgment of the District Court in favor of Plaintiff-
Appellee Edwyna Brooks. Brooks brought a copyright infringement claim for Dash’s marketing and
selling of the film “Mafietta” on iTunes and the Dame Dash Studios website in violation of the
Copyright Act of 1976, 17 U.S.C. §§ 101 et seq. The District Court awarded Brooks $300,000 in total
damages and permanently enjoined Dash from marketing, advertising, promoting, distributing,
selling, or copying the film without Brooks’s consent. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
At a bench trial before the District Court, Dash presented as a defense to copyright
infringement that the film was a “joint work,” meaning that he, as “co-author,” co-owned the
copyright in the film and thus could not be liable for copyright infringement. Under the Copyright
Act, a “joint work” is “a work prepared by two or more authors with the intention that their
contributions be merged into inseparable or interdependent parts of a unitary whole.” 17 U.S.C.
§ 101. A co-authorship claimant must show, inter alia, “that ‘each of the putative co-authors . . . fully
intended to be co-authors.’” 16 Casa Duse, LLC v. Merkin, 791 F.3d 247, 255 (2d Cir. 2015) (quoting
Thomson v. Larson, 147 F.3d 195, 200 (2d Cir. 1998)). To determine whether this mutual intent
requirement is satisfied, a court conducts a “nuanced inquiry into factual indicia of ownership and
authorship, such as how a collaborator regarded herself in relation to the work in terms of billing
and credit, decisionmaking, and the right to enter into contracts.” Thomson, 147 F.3d at 201 (citing
Childress v. Taylor, 945 F.2d 500, 508–09 (2d Cir. 1991)). We review the District Court’s findings of
fact for clear error, including the issue of intent, and we review de novo the application of facts to
draw conclusions of law. Thomson, 147 F.3d at 199.
The District Court granted judgment in favor of Brooks based on its finding that Brooks
and Dash did not intend to be co-authors. Brooks v. Dash, 454 F. Supp. 3d 331, 337–38 (S.D.N.Y.
2020). In support of this conclusion, the District Court found that Brooks credibly testified at trial
that “Dash was employed under the doctrine of work for hire and that it was never intended that he
be a co-author of the film.” Id. at 337. Brooks testified that the agreement was that Dash would
provide directing and marketing services for the film in return for a royalty of 50 percent. App’x 76,
83. The District Court also examined unexecuted versions of the Mafietta Motion Picture Director’s
Agreement and found that all three drafts contained an identical work-for-hire provision and a post-
production clause that stated that Brooks (as producer), not Dash (as director) would make all final
decisions with respect to the film and its release. Brooks, 454 F. Supp. 3d at 337. Likewise, in an email
Brooks sent to Dash one month after filming was completed, Brooks stated: “I am not offering
creative control. I am offering a chance for you to bring an edit to the table … I will maintain final
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approval. I have no issue with paying out the 50% we discussed. However, I have a big issue with
the word OWN as the book, sizzle, and script were complete when I met you.” Id. The District
Court found that Dash’s testimony that both parties intended Dash to be a co-author lacked both
witness credibility and corroboration by documentary evidence. Id. at 338.
Dash argues on appeal that the parties orally agreed to a 50/50 split in ownership. But the
District Court found Dash’s testimony unpersuasive. Upon our review of the record, we find no
clear error in this determination. Dash also emphasizes his substantial contributions to the film,
including choosing some cast and crew, shooting and directing the film, and making creative
decisions including product placement. However, in light of the District Court’s findings noted
above, these alleged contributions to the film do not evince mutual intent of co-authorship; rather,
they reflect the provision of services for which Brooks offered to split the film’s profits 50/50. Nor
is there merit to Dash’s contention that he was the “dominant author” of the film (and therefore the
copyright owner). Especially in light of Brooks’s evidence, which the District Court credited, that
she had written not only the Mafietta book series, of which the film was an adaptation, but also the
film script and rewrites, the District Court reasonably concluded that Brooks was the dominant
author. Id. at 337–38 & n.8; see also 16 Casa Duse, 791 F.3d at 260 (“In cases in which none of the
multiple-author scenarios specifically identified by the Copyright Act applies, but multiple
individuals lay claim to the copyright in a single work, the dispositive inquiry is which of the putative
authors is the dominant author.”) (internal quotation marks omitted). Accordingly, we find no clear
error in the District Court’s findings of fact and we affirm its conclusions of law.
Regarding damages, Dash argues that the District Court’s $300,000 award of actual damages
was unduly speculative and/or clearly erroneous because it exceeds the cost of producing the film
and profits attributable to the infringement, and relies on misguided expert testimony. “We review
the method of calculation of damages de novo, and the actual calculation of damages for clear error.”
Hamil America Inc. v. GFI, 193 F.3d 92, 97 (2d Cir. 1999). Brooks sought actual damages under the
Copyright Act, 17 U.S.C. § 504(b). As actual damages under the Copyright Act include lost profits
and injury to the copyright’s value, Fitzgerald Pub. Co. v. Baylor Pub. Co., 807 F.2d 1110, 1118–19 (2d
Cir. 1986), the District Court properly considered indirect evidence of the profits that Brooks might
have earned if not for Dash’s infringement.
Dash further contends that the calculated damages improperly reflect loss of gross revenue
rather than income or profit for Brooks. But Dash failed to raise this argument before the District
Court, and he has not demonstrated that the District Court’s award was clearly erroneous. See Rana
v. Islam, 887 F.3d 118, 122 (2d Cir. 2018). Additionally, “[c]ourts and commentators agree [that the
term ‘actual damages’] should be broadly construed to favor victims of infringement.” On Davis v.
Gap, Inc., 246 F.3d 152, 164 (2d Cir. 2001). When courts are confronted with imprecision in
calculating damages, they “should err on the side of guaranteeing the plaintiff a full recovery.” Sygma
Photo News, Inc. v. High Soc. Magazine, 778 F.2d 89, 95 (2d Cir. 1985). See also 4 Melville B. Nimmer &
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David Nimmer, Nimmer on Copyright § 14.02[A][3] (“Uncertainty will not preclude recovery of actual
damages if the uncertainty is as to amount, not as to whether actual damages are attributable to the
infringement.”) (collecting cases).
CONCLUSION
We have reviewed the remaining arguments raised by Dash on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the April 14, 2020 judgment of the District
Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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