Opinion
Case No. CV 10-07181 DDP (SSx)
10-09-2012
RICHARD REINSDORF, an individual, Plaintiff, v. SKECHERS U.S.A, a Delaware corporation; SKECHERS U.S.A.., INC., II, a Delaware corporation, Defendants.
ORDER DENYING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT AND GRANTING
DEFENDANT'S MOTIONS IN LIMINE
[Dkt. Nos. 124, 125, 127, 139, 185]
Presently before the court is Defendant Skechers U.S.A. ("Skechers")' Motion for Summary Judgment. Having considered the submissions of the parties and heard oral argument, the court grants the motion in part, denies the motion in part, and adopts the following order.
I. Background
As explained in this court's earlier order denying Defendant's Motion to dismiss, Skechers is a shoe company. (Declaration of Robert Welsh in support of Motion ("Welsh Dec.") Ex.19.) Beginning in 2005, Skechers hired Plaintiff Richard Reinsdorf ("Reinsdorf"), a photographer, to conduct several photo shoots. (Undisputed Fact ¶ 6). Between 2006 and 2009, Skechers engaged Reinsdorf to conduct five photo shoots at issue here, in connection with Skechers's marketing efforts. (Complaint ¶¶ 14-15, 18-19, 22-23, 25, 29-30.) Prior to each photo shoot, Skechers explained to Reinsdorf the type of images Skechers hoped to capture. (Welsh Dec., Ex. 44 ¶¶ 10,12.) These explanations included storyboards and photographic examples, as well as drawings depicting particular poses for Skechers' selected models. (Id. ¶¶ 12, 14.) During the shoots, Reinsdorf posed models, arranged lighting and props, and otherwise directed the photography sessions. (Compl. ¶ 23.) Reinsdorf delivered raw photographs ("the photographs") to Skechers at the conclusion of each photo shoot. (UF ¶ 22.)
Upon receiving the photographs from Reinsdorf, Skechers proceeded to modify the images for use in Skechers advertisements. (Welsh Dec., Ex. 44 ¶ 17.) The alterations varied with each image, and ranged from slight modifications in models' skin tone to the substitution of models' body parts and the addition of substantial graphic effects. (Id. ¶¶ 17, 21.) These enhanced images were then used in Skechers advertisements ("the advertisements"). (Id. ¶ 16.) No raw, unaltered photograph was ever incorporated into a finished advertisement. (Id.)
Reinsdorf submitted invoices to Skechers for his services, and contends that he granted Skechers a limited license to use the photographs. (Compl. ¶¶ 442; Statement of Genuine Issues ¶¶ 16-20, 22). Reinsdorf brought suit in this court alleging copyright infringement, as well as state law causes of action for breach of contract and unfair competition, alleging that Skechers utilized his copyrighted images as part of Skechers' marketing efforts in violation of the temporal and geographic limits of the use licenses. (Compl. ¶ 6.) Skechers now moves for summary judgment.
II. Legal Standard
Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All reasonable inferences from the evidence must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the moving party does not bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 323.
Once the moving party meets its burden, the burden shifts to the nonmoving party opposing the motion, who must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. Summary judgment is warranted if a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. A genuine issue exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and material facts are those "that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. There is no genuine issue of fact "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
It is not the court's task "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996). Counsel has an obligation to lay out their support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). The court "need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposition papers with adequate references so that it could conveniently be found." Id.
III. Discussion
A. Procedural History
Skechers previously brought a Motion to Dismiss for lack of jurisdiction, arguing that the advertisements at issue in this case are joint works created by both Reinsdorf and Skechers. Because the jurisdictional issues were inextricably entwined with the merits of the case, this court applied the more rigorous standard applicable to motions for summary judgment under Federal Rule of Civil Procedure 56. (See March 9, 2012 Order Denying Defendant's Motion to Dismiss ("Order"), Dkt. No. 28.)
As explained in the court's earlier Order, a joint work is a copyrightable work prepared by (1) two or more authors who (2) make independently copyrightable contributions and (3) intend that those contributions be "merged into inseparable or interdependent parts of a unitary whole." Richlin v. Metro-Goldwyn-Mayer Pictures, Inc., 531 F.3d 962, 969 (9th Cir. 2008). Co-authors in a joint work cannot be held liable to one another for infringement of the copyright in the joint work. Oddo v. Ries, 743 F.2d 630, 632-33 (9th Cir. 1984); Thomson v. Larson, 147 F.3d 195, 199 (2d Cir. 1998).
This court found that the first two factors, authorship and independently copyrightable contributions, were not at issue. With respect to authorship, the court expressly declined to determine whether Reinsdorf was the sole author of the raw photographs because, even if that were the case, the finished advertisements at issue here would nevertheless be the product of contributions from two authors, Reinsdorf (raw photographs) and Skechers (graphical additions and modifications). (Order at 5 n.3.)
The court focused, therefore, on the third factor necessary to establish the existence of a joint work: the intent of the parties to merge independent contributions into a unitary whole. After concluding that the record did not establish that Reinsdorf intended his raw photographs to be merged into a finished advertisement, the court denied Skechers' motion. (Id. at 7.) Reinsdorf did not move for reconsideration or otherwise challenge the court's conclusions.
Now, after the conclusion of discovery, Skechers seeks summary judgment on the joint work issue. Skechers argues that the fully-developed record now demonstrates that Reinsdorf did indeed intend for his raw photographs to be merged with Skechers' graphical enhancements into a finalized marketing image.
Reinsdorf's opposition to the motion does not dispute Skechers' contentions regarding his intent with respect to the synthesis of the parties' independent contributions. Instead, Reinsdorf now challenges the second, authorship element of the joint work test, arguing that the marketing images at issue here are not the creations of two or more authors. (Opp. at 8-16.)
B. Joint Authorship
This case presents an unusual set of circumstances. In most cases, a plaintiff seeks to establish that he is the sole author of a work, see, e.g., Morrill, 157 F. Supp. 2d at 1122, or at least a co-author of a work, see, e.g., Aalmuhammed v. Lee, 202 F.3d 1227, 1230 (9th Cir. 2000), so as to enjoy the benefits of copyright ownership (or co-ownership). Here, in contrast, Plaintiff Reinsdorf seeks to disavow any authorship role in the finished marketing works.
Reinsdorf's position is understandable in light of the fact that, as explained above, a co-author in a joint work cannot be liable to another co-owner for infringement of the copyright in that work. Oddo, 743 F.2d at 632-33 (9th Cir. 1984). Furthermore, and perhaps more importantly, "[i]n a joint work, . . . each author obtains an undivided ownership in the whole of the joint work, including any portion thereof. Consequently, one joint author thereby obtains the right to use or license that portion of the joint work that was the sole creation of the other joint author." 1 Nimmer on Copyright § 6.06[A]. Thus, to bring a successful infringement claim against Skechers, Reinsdorf must establish that his role in the creation of the final marketing images did not rise to the level of authorship.
The criteria for joint authorship include whether 1) an alleged author exercises control over a work, serves as "the inventive or master mind," or creates or gives effect to an idea; 2) there exists an "objective manifestation of a shared intent to be coauthors; and 3) "the audience appeal turns on both contributions and the share of each in its success cannot be appraised." Aalmuhammed, 202 F.3d at 1233-35 (internal quotations and citations omitted). Due to the variety of creative relationships to which these factors apply, however, the factors "cannot be reduced to a rigid formula." Id. at 1235.
1. Control
Courts in this district have found the joint control criterion satisfied where "both parties had creative control over separate and indispensable elements of the completed product." Morrill v. Smashing Pumpkins, 157 F. Supp. 2d 1120, 1124 (C.D. Cal. 2001); see also Eagle Rock Entm't. Inc. v. Coming Home Prods., Inc., No. CV 3-571 FMC; 2004 WL 5642002 *13 (C.D. Cal. Sept. 1, 2004). Here, the parties appear to agree on their respective degrees of control over the constituent parts of the marketing images. Reinsdorf's opposition argues that "[a]lthough . . . Skechers controlled the latter half of the creative process here, namely the graphic design of its marketing images, it exercised little to no control over Reinsdorf's authorship of his underlying photographs. . . ." (Opp. at 9.) Similarly, Reinsdorf asserts that "[j]ust as Skechers had minimal involvement in Reinsdorf's authorship of his photographs, [Reinsdorf] likewise did not exercise any supervisory powers over the design of Skechers' marketing images . . . ." (Opp. at 11 (internal quotation omitted).) Skechers does not dispute these characterizations. (Reply pp. 7-10.) Thus, as in Morrill and Eagle Rock Entertainment, each party had exclusive, or near-exclusive, power over the distinct constituent parts of the unitary whole. The "supervisory" or "control" factor thus weighs in favor of joint authorship.
2. Audience Appeal
While acknowledging that the audience appeal of the marketing images could be attributed to both parties' contributions, Reinsdorf argues that the bulk of the images' appeal can be attributed to Reinsdorf's photos, and quantified. Reinsdorf contends that the relative appeal of the parties' separate contributions can be appraised by a casual comparison of the raw photographs with the finished images. (Opp. at 17.) "From that basis," Reinsdorf claims, "one can fairly easily parse how much of the audience appeal of the work originates" from the various elements. (Id.) This conclusory assertion notwithstanding, the only evidence Reinsdorf cites is a survey study by Dr. Frank Lunz. (Opp. at 17.) Putting aside for the moment Skechers' general objections to Dr. Lunz's opinions, it does not appear that Dr. Lunz ever compared Reinsdorf's raw photographs to the finished Skechers advertisements. Dr. Luntz' survey was designed to test brand recognition, not to appraise the relative audience appeal of the various elements in the finished advertisements. It appears that Dr. Luntz did not present either Skechers' complete advertisements or Reinsdorf's raw photographs to survey participants. (Declaration of Dr. Carol Scott in Support of Motion to Exclude Luntz Report ¶ 46.) Without such a comparison, Skechers cannot credibly argue that the relative audience appeal of the joint authors' contributions has been ascertained, and has failed to demonstrate that the share of appeal attributable to each element can be appraised. The audience appeal factor therefore weighs in favor of joint authorship.
It appears that Dr. Luntz did not present either Skechers' complete advertisements or Reinsdorf's raw photographs to survey participants. (Declaration of Dr. Carol Scott in Support of Motion to Exclude Luntz Report ¶ 46.) Dr. Luntz' survey was designed to test brand recognition, not to appraise the relative audience appeal of the various elements in the finished advertisements.
3. Objective Manifestations of Intent
With respect to manifestations of intent, in the absence of a contract, the inquiry here must focus on the facts. Aalmuhammed, 202 F.3d at 1235. Here, Skechers has presented facts that it suggests evince the parties' intent to be joint authors. Reinsdorf testified, for example, that his goal was to do a "great job," defined as "capturing great moments" that "Skechers could use in its advertising and marketing materials." (Reinsdorf Deposition, Welsh Dec., Ex. 50 at 323:3-6.) Reinsdorf did not expect anything in particular about the finished images, as "[Skechers] could do whatever," and never did anything creatively with the pictures that it was not allowed to do. (Reinsdorf Depo. at 314:18-19; 330:2-6.) Indeed, Reinsdorf had created similar images, which Skechers subsequently modified for use in advertising materials not at issue in this case, for Skechers at an earlier photo shoot, the "Michelle K" photo shoot. (Id. at 393.) As with the earlier Michelle K shoot, Reinsdorf understood that he would be taking photos for Skechers to use in its catalogs and other marketing materials. (Id. at 396:10-20.) Reinsdorf's representative, Robert Heller ("Heller"), acknowledged in an e-mail to Skechers personnel that Skechers' intended to "digitally play" with or otherwise "decorate" Reinsdorf's raw images. (Ex. 53 to Welsh Dec. at 128.)
Heller also testified that, as Reinsdorf's representative, he affirmatively wanted Skechers to do something with the images, "to make beautiful ads for their company." (Id. at 130.) Indeed, Reinsdorf facilitated Skechers' manipulation of the images by suggesting that Skechers use a gray or white background so as to facilitate digital alteration of Reinsdorf's photos. (Id. at 125:5-7.) When Reinsdorf received samples of the finished advertisements, his representative did not express shock or confusion, but rather stated, "These came out great! Love the art direction in the graphics!!" (Ex. 24 to Welsh Dec.) Even after the commencement of this suit, Reinsdorf displayed the finished marketing images on his personal website. (Dec. of William Briggs in Opposition to Motion, Ex. 46.)
The exhibit in question is not an image of Reinsdorf's website, but rather a cease and desist letter sent to Reinsdorf by Skechers, referencing the use of the advertisements. In its reply, Skechers asserts that it sought to prevent Reinsdorf from displaying Skechers trademarks and logos, but not the marketing images. (Reply at 10.) It is unclear whether the website displayed Skechers logos or trademarks separate and apart from the advertising images themselves.
While these actions and communications provide an indication of Reinsdorf's intent that the parties' separate contributions be merged into a unified whole, that is not the question here. Rather, the issue is whether the parties manifested an intent to be co-authors. The difference is important. While intent to merge separate contributions is a necessary element of a joint work, it is not equivalent to an intent to be joint authors.
Aalmuhammed itself provides a useful illustration of the distinction. There, the plaintiff wrote certain passages and scenes that appeared in a movie. Aalmuhammed 202 F.3d at 1231-32. The court found that the parties all intended for the plaintiff's contributions to be merged into independent parts of the movie as a whole. Id. at 1332. That intent, however, had no bearing on whether the parties intended the contributing plaintiff to be an "author" of the film. Id. at 1232-35. Applying the control, audience appeal, and intent factors described above, the Aalmuhammed court ultimately determined that, despite the parties' intent to merge their independent contributions, the parties did not intend for the plaintiff to be a co-author of the movie and the plaintiff was not an author of the film. Id. at 1235.
Skechers' evidence that the parties here intended Reinsdorf's photos to be merged with Skecher's digital alterations and additions therefore does not resolve the authorship issue. Indeed, the parties behaved in ways uncharacteristic of joint authors. Perhaps most importantly, Reinsdorf charged Skechers thousands of dollars for his work. Not only did Reinsdorf charge for his time and effort, but also for "usage" of the photographs. (Declaration of Robert Heller in Opposition to Motion, Ex. 11.) Reinsdorf also attempted to limit Skechers' use of its ads by including temporally and geographically restricting language in his invoices to Skechers. Skechers, for its part, also sought to prevent Reinsdorf from making use of the finished images on his personal website, even during the pendency of this suit. (Briggs Dec., Ex. 46.)
A party intending to jointly produce a finished work generally would not require payment from a co-author or, conversely, would not agree to pay for a purported co-author's contribution. More importantly, a co-author would not attempt to constrain an intended co-author's use of a collaborative work. Other courts have come to similar conclusions under similar circumstances. In Tang v. Putruss, 521 F. Supp. 2d 600 (E.D. Mich. 2007), for example, a contract between a photographer and a purported co-author required that the second party pay the photographer money before using the photographer's photos. Id. at 607. The court found such a provision inconsistent with an intent to be joint authors. Id.
The court in Robinson v.Buy-Rite Jewelery, Inc., No. 03 CIV 3619(DC), 2004 WL 1878781 (S.D.N.Y. Aug. 23, 2004), addressed circumstances similar to, but critically different from, those here. In Robinson, as here, a photographer was hired for a fashion shoot, and yielded all subsequent decision-making authority as to how the photos would be used. Id. at *3. Unlike here, however, the photographer agreed that the other contracting party could use the photographs without limitation. Id. Relying on this "critical" fact, the court concluded that the parties did intend to be joint authors. Id.
This court's analysis of the three Aalmuhammed authorship factors indicates that Skechers' finished advertisements are not the products of multiple authors. While the control and audience appeal factors suggest plural authorship, the parties' behavior toward one another clearly indicates a lack of intent to be joint authors of the finished works.
C. Motions in Limine
Skechers seeks to exclude the testimony of Plaintiff's experts Frank Luntz and Jamie Turner. Under Federal Rule of Evidence 702, an expert witness may offer opinion testimony if 1) that specialized knowledge will aid the trier of fact, 2) the testimony is based on sufficient information, 3) the testimony is the product of reliable methods, and 4) the expert has properly applied those methods to the facts of the particular case. Fed. R. Evid. 702.
1. Frank Luntz
Plaintiff's expert Dr. Frank Luntz ("Luntz") conducted a survey designed to test 1) whether Reinsdorf's photographs were directly linked to the Skechers brand and 2) whether Reinsdorf's photos influenced consumers' decision to purchase a product. (Opp. at 5.) Skechers contends that this survey was fatally flawed, in that it was directed at an unrepresentative population, employed improper stimuli that produced biased responses, and failed to use adequate controls. (Mot. at 1).
Dr. Luntz surveyed an even number of men and women aged sixteen to twenty-four, even though he knew that Skechers' customers are disproportionately female. (Decl. of Carol Scott ¶ 9; Luntz Depo. at 119). Luntz selected that age range because, according to his research, that demographic is the "meat of the athletic wear purchaser." (Declaration of Jeffrey A. Barker ¶ 5.) Skechers, however, has submitted evidence that it is not an "athletic wear" company, but rather a "fashionable footwear" company that sells products ranging from "active" apparel to "dress[wear]". Luntz surveyed participants from five geographical regions, but did not compare the distribution of participants to the distribution of Skechers' advertising and sales, nor determine whether the ads used in the survey had actually been displayed in those regions. ((Luntz Deposition at 113-15.)
Luntz did not keep any records of this research. (Id.)
Luntz attempted to evaluate the link between Reinsdorf's photos and Skechers' brand by showing survey participants an image, then asking which company the image was promoting. (Luntz Depo., Ex. 511.) Respondents had to choose between Skechers, Adidas, Converse, Nike, and Reebok. (Id.) There was no "I don't know" option. (Id.) As Luntz later acknowledged, all options other than Skechers are principally athletic apparel companies. (Luntz Depo. at 172-73.) As described above, Skechers sells a broad range of products, including dress apparel. Skechers argues, therefore, that the survey format produced biased, unreliable results. (Barker Dec. ¶ 6.)
For example, at question 10, participants were shown an image of a woman in heavy makeup, tight, shiny, purple leather pants, a revealing top, and raised-heel, strapped, polka dot shoes. (Luntz Depo., Ex. 511). Survey respondents were then asked whether the image promoted Adidas, Converse, Nike, Reebok, or Skechers. (Luntz Depo., Ex. 511). Question 11, in contrast, poses the same brand-identification inquiry with respect to an image of a baseball player on a baseball field, in uniform and batting helmet, lifting a weighted baseball bat. (Id.) The survey is replete with other examples of Skechers ads featuring models in leather jackets and jewelry staring straight into the camera, as well as non-Skechers ads featuring action and sports scenes. (Id.) Later in the survey, respondents were presented with the same ads, from all five companies, side-by-side, then specifically asked to identify which of the five ads ("disco girl" with sunglasses, baseball player, gymnast, etc) was a Skechers ad. (Id.) Skechers argues that the obvious differences between Skechers "fashionable" ads and the other companies' athletic-themed ads skewed identifications' toward Skechers, and render the Luntz fundamentally flawed.
Lastly, Skechers contends that the Luntz survey failed to use adequate controls. (Mot. at 11-12.) Survey participants were not shown any ads that did not contain any Reinsdorf images, nor were they shown any unaltered Reinsdorf images. Instead, respondents were only shown images containing both Reinsdorf's photographs and alterations and enhancements made by Skechers. Participants were never asked why they associated a particular ad with Skechers. Absent any controls, such as ads containing photos other than Reinsdorf's or Reinsdorf's unaltered photos, Skechers argues, the survey provides no basis upon which to conclude that Reinsdorf's photos are the motivating force behind consumers' association of the ads in question with Skechers' brand.
Reinsdorf makes virtually no attempt to defend Luntz's methods. Instead, Reindsdorf contends that Skechers has merely "nitpicked" the Luntz survey, and that any questions regarding the survey's technical reliability is a question of weight to be determined at trial. (Opp. at 1, 5); see E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1292 (9th Cir. 1992). The first step in the court's analysis of any survey, however, is to determine whether the survey is admissible, relevant, and conducted according to accepted principles. Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1263 (9th Cir. 2001). The court must, therefore, determine whether a preponderance of the evidence establishes that the reasoning or methodology underlying expert testimony is scientifically valid. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593 (1993). Unless survey evidence is conducted according to accepted principles, it is not admissible in the first instance. Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgm't, Inc., 618 F.3d 1025, 1036 (9th Cir. 2010).
Here, the preponderance of the evidence indicates that the Luntz survey was not conducted according to accepted scientific principles. Luntz did not identify any basis, save for his own undocumented research, for selecting the survey population that he used. There is no indication that the survey population had any relationship to the relevant population of Skechers consumers. Skechers fashion-focused ads were presented alongside obviously distinctive sportswear ads in closed-ended brand identification questions. Furthermore, though the survey purported to examine the role that Reinsdorf's photos played in consumers' association of certain ads with Skechers' brand, the survey did not include any controls or basis for comparison.
These inadequacies speak not merely to the weight that should be accorded to the survey, but rather to the fundamental reliability of Luntz's approach. Reinsdorf does not identify any scientific principles underlying the Luntz survey, which appears to violate numerous accepted practices in the field of survey research. (Scott Dec. ¶¶ 24-25, 31; Shari S. Diamond, Reference Guide on Survey Research, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 373-408 (Fed. Judicial Center 3d ed. 2011). Accordingly, Skechers' Motion to Exclude Luntz's testimony and report is GRANTED.
The court further notes that Reinsdorf did not comply with the Magistrate Judge's order regarding the production of raw data from the Luntz survey. Though Reinsdorf eventually produced the data, it did so after the expiration of the deadline set by the Magistrate Judge and after the filing of the instant motion. Nevertheless, Skechers does not appear to have been unduly prejudiced by the late production.
2. Jamie Turner
A copyright owner is entitled to recover "any profits of [an] infringer that are attributable to the infringement." 17 U.S.C. § 504(b). Recoverable profits include an infringer's "indirect profits," which generally arise when an infringer uses "a copyrighted work to sell another product." Garcia v. Coleman, No. C-07-2279 EMC, 2009 WL 799393 at *2-3 (N.D. Cal. Mar. 24, 2009) (citing Polar Bear Prods. v. Timex Corp., 384 F.3d 700 (9th Cir. 2004)). Because only those profits "attributable to the infringement" are recoverable under the Copyright Act, "a causal link between the infringement and the monetary remedy sought is a predicate to recovery" of any kind. Polar Bear, 384 F.3d at 708.
It is the plaintiff's burden to establish a non-speculative causal connection between an infringement and the infringer's profits. Id. at 708, 711; Mackie v. Rieser, 296 F.3d 909, 914-16 (9th Cir. 2002). A plaintiff cannot merely present an infringer's gross revenue, but rather must identify a particular revenue stream that bears a "legally sufficient relationship" to the infringement. Polar Bear, 383 F.3d at 711.
Reinsdorf seeks to introduce the testimony of Jamie Turner to establish the amount of Skechers' profits attributable to Skechers' use of Reinsdorf's photographs. Turner summarized his analysis as follows:
1. [W]e can broadly conclude that more than 0% but less than 100% of the net profits generated by Skechers during this period can be attributable to Mr. Reinsdorf's brand imagery.(Turner Report at 14-15.)
2. We know there was already some value to Skechers [sic] brand . . . so it is safe to assume that Mr. Reinsdorf's images are worth less than 100% of the net profits . . . .
3. [W]e know that Mr. Reinsdorf's brand imagery was used around the globe . . . .
4. We also know that this brand imagery was a foundational element of the marketing program . . . .
5. [W]e know that the residual value of the brand imagery will continue for approximately five years . . . .
6. Therefore, based on the above facts and based on my experiences working with brands such as The Coca Cola Company, AT&T and CNN . . ., it is reasonable to conclude that the value that Mr. Reinsdorf's copyrighted brand images contributed to the net profits for the corporation fall somewhere between 50% and 75% of the net profits
. . . .
Turner's entire contribution to this dispute essentially amounts to, "I have a lot of experience with brands and marketing, therefore I can divine that 50-75% of this large, successful, company's profits come from Reinsdorf's photographs." This "analysis" identifies no causal link, let alone a non-speculative connection, between Skechers' alleged infringement and any particular revenue stream. Turner somehow settles upon an indirect profits figure between $161 million and $241.1 million without any specific data or discernible methodology, and in reliance on such "facts" as "it is safe to assume that Mr. Reinsdorf's images are worth less than 100% of the net profits." Turner's opinion is not based upon sufficient facts and is not the product of reliable methods. Because Turner's opinion fails to illustrate a relationship of any kind between infringing conduct and specific income, it cannot serve as a basis for granting Reinsdorf Skechers' indirect profits. Skechers motion to exclude Turner's testimony is GRANTED.
The court does not consider Turner's newly proffered opinion, submitted as an opposition to Skechers' Motion in Limine. See Fed. R. Civ. P. 37(c)(1). Even if the court were to consider Turner's declaration, the result here would not change. The declaration is internally inconsistent, referring at one point to financial reports from 2007 through 2009 and elsewhere to reports spanning from 2008 to 2010, and purports to rely on other late-filed declarations that conflict with Turner's statements and conclusions.
While the court has sustained Skechers' objection to Turner's newly-filed expert opinion, Skechers presented that objection in combination with a purported motion to strike the supplemental report of David Connelly. (Dkt. No. 185). Reinsdorf did not oppose the motion, and the issue was not raised at oral argument. Though the docket indicates that that motion was taken under submission, the Motion to Strike was untimely filed. C.D. Cal. L.R. 6-1. Insofar as it regards David Connelly, the Motion is VACATED. Skechers remains free to file a Motion in Limine regarding the supplemental Connelly report.
Having concluded that Turner's opinion is inadmissible for failure to apply reliable methods and rely upon sufficient information, the court does not address Skecher's contention that Turner is not qualified to present expert testimony.
D. Remaining Issues
Skechers also argues that it is entitled to summary judgment because the invoices Reinsdorf sent to Skechers are not copyright licenses as a matter of law. Skechers correctly points out that Reinsdorf's declaration with respect to this issue contradicts his earlier admissions. The complaint alleges that "Reinsdorf entered into a series of written license agreements with Skechers for its exclusive use of his photos . . . ." (Compl. ¶ 55.) In February 2012, Reinsdorf confirmed that the facts asserted in his complaint were accurate to the best of his knowledge. (Reinsdorf Depo. at 16:14-16.)
Three months later, however, over two months after the deadline to make changes to the deposition transcript, Reinsdorf purported to completely change his answer to "Skechers did not actually get exclusive use of the pictures." (Supplemental Dec. of Robert Welsh, Ex. 6.) Reinsdorf has not provided any explanation for the untimely reversal. Reinsdorf also now states in opposition to the instant motion for summary judgment that he "never granted Skechers an exclusive right to use my photographs." (Reinsdorf Dec. at 17.) A party may not, however, create an issue of fact by contradicting prior deposition testimony. Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009). The court finds that there is a clear inconsistency between Reinsdorf's initial testimony, in which he confirmed the complaint's allegation that he granted Skechers an exclusive license, and his later untimely correction and declaration that he did not grant Skechers an exclusive license. Reinsdorf's subsequent affidavit is a sham, and is thereby stricken. Id.
Beyond holding Reinsdorf to his initial assertion, however, the court expresses no opinion regarding the existence of a copyright license. Having determined that the finished advertisements are not joint works, it is unclear to the court whether Skechers' license argument remains relevant. With respect to the license issue, Skechers' Motion for Summary Judgment is therefore DENIED without prejudice.
Though Skechers suggests that it is entitled to summary judgment if there was no license, the basis for this contention is unclear.
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IV. Conclusion
Skechers has not demonstrated that the parties intended to be co-authors of the finished marketing images, which are, therefore, not joint works. In light of that determination, it is unclear whether Skechers' license argument remains relvant. Accordingly, Skechers' Motion for Summary Judgment is DENIED.
The expert opinions of Frank Luntz and Jamie Turner do not satisfy the requirements of Federal Rule of Evidence 702. Accordingly, Skechers' Motions in Limine to exclude those opinions are GRANTED. IT IS SO ORDERED.
__________________
DEAN D. PREGERSON
United States District Judge