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John C. Gatz is a member of the firm Nixon Peabody LLP in Chicago. Column contributors include the following writers. Copyrights: Zachary J. Smolinski, Panduit Corporation; Michael N. Spink, Brinks, Hofer, Gilson & Lione; Mark R. Anderson, Ulmer & Berne LLP. Patents: Cynthia K. Barnett, Johnson & Johnson; Timothy M. Kowalski, Google Inc.; R. Trevor Carter and Daniel M. Lechleiter, Faegre Baker Daniels LLP; Robert W. (Bill) Mason, Kinetic Concepts, Inc. Trade Secrets: R. Mark Halligan, Nixon Peabody LLP. Trademarks: Janet M. Garetto and Elizabeth W. Baio, Nixon Peabody LLP; Amy L. Sierocki.
Thale v. Apple, Inc., 2013 WL 3245170 (N.D. Cal. 2013). Thale is a photographer who took a copyrighted photo of the band She & Him for promotional use. The license between Thale and the band excluded the use of the photo to promote third-party products. Apple used the photo in a commercial for the iPhone 3GS to promote certain features of that phone. Thale sued Apple for copyright infringement and sought indirect profits under 17 U.S.C. § 504(a)(1) and (b). Apple moved for summary judgment with respect to the indirect profit damages.
The court granted Apple’s motion, and ruled that Thale failed to establish a sufficient causal relationship between the infringement and the profits generated indirectly from such an infringement. The court found that prior Ninth Circuit cases require the copyright holder to offer sufficient nonspeculative evidence to support a causal relationship between the infringement and the profits generated indirectly by the infringement. Once the causal nexus has been shown by the copyright holder, the infringer has the burden of apportioning profits that were not the result of the infringement. Thus, the Ninth Circuit found that Thale failed to offer any nonspeculative evidence to support a recovery for indirect profits. The Ninth Circuit found that there was no evidence that sales of the iPhone 3GS resulted from mere use of the photo. Thus, the Ninth Circuit granted Apple’s motion for summary judgment and dismissed Thale’s claim for indirect profits.