Page:MGE UPS Systems Inc. v. GE Consumer and Industrial Inc. (5th Cir., 20 July 2010).djvu/8

No. 08-10521

GE/PMI argues the district court erred in denying its Rule 50(a) motion with regard to MGE’s claim under the Copyright Act because the testimony of MGE’s damages expert had been stricken, and MGE improperly relied on PMI’s total gross revenue figure rather than the portion reasonably related to the copyright infringement. For the same reason, GE/PMI argues MGE failed to prove all the elements of its state law misappropriation of trade secrets and unfair competition claims: without introducing evidence of PMI’s profits related to the infringement, MGE has failed to prove damages for these claims.

GE/PMI argues that the district court erred in denying its Rule 50(a) motion because MGE failed to present sufficient evidence of damages. Under , a copyright owner is permitted to recover his own “actual damages,” including lost profits and “reasonable royalty rates,” or what a willing buyer would have been reasonably required to pay a willing seller as a licensing fee for the actual use of the copyrighted material by the infringers. Davis v. Gap, Inc., 246 F.3d 152, 167 (2d Cir. 2001). A copyright owner may also seek “any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.” . If the copyright owner chooses to claim infringer’s profits, “the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.” Id.; see also Estate of Vane v. Fair, Inc., 849 F.2d 186, 188 (5th Cir. 1988) (applying this standard to copyright infringement action seeking infringer’s profits). GE/PMI argues that MGE failed to satisfy the first step of proving infringer’s profits because MGE’s only evidence of gross revenues was Exhibit DX-37, a one-page bar graph showing PMI’s “total revenue” from all lines of business from 8