Case: 1:08-cv-00491-SO Doc #: 160 Filed: 03/31/11 1 of 17. PageID #: 2278
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF OHIO
`EASTERN DIVISION
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`Case No.: 1:08 CV 491
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`JUDGE SOLOMON OLIVER, JR.
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`ORDER
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`CATHERINE BALSLEY, et al.,
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`Plaintiffs
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`v.
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`LFP, INC., et al.,
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`Defendants
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`Currently pending in the above-captioned case is Defendant LFP, Inc.’s (“Defendant”)
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`Motion for Judgment as a Matter of Law and/or Motion for New Trial and/or to Alter or Amend the
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`Judgment (ECF No. 153). Although two Defendants are listed on the Docket in this case, LFP, Inc.
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`and Hustler, Inc., the parties agreed prior to trial that LFP, Inc. was the sole Defendant.
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`I. FACTS AND PROCEDURAL HISTORY
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`The instant case concerns the publication by LFP, Inc., the parent company of Hustler, Inc.,
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`of a photograph of Catherine Balsley, also known as Catherine Bosley (“Bosley”) in the February
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`2006 issue of Hustler Magazine. Both Bosley and her husband (collectively, “Plaintiffs”) claim a
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`copyright in the published photograph.
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`In March 2003, Bosley participated in a wet T-shirt contest in Key West, Florida. Bosley
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`undressed while on stage, and members of the audience took photographs and made video
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`recordings of her. Some of the photographs and videos were posted on the Internet, which resulted
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`in Bosley resigning from her position as a television news anchor in Youngstown, Ohio. The
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`photograph at issue in this case was taken by Mr. Gontran Durocher and posted by him on his
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`website, www.lenshead.com. The photograph portrays a partially nude Bosley on stage during the
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`wet T-shirt contest.
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`Plaintiffs secured the copyright to the photograph at issue, as well as other works, in May
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`2004. (Ohio Case Number 4:04-CV-0393.) Plaintiffs registered their copyright with the United
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`States Copyright Office. (Compl. ¶ 20.) Defendant received the photograph as a result of a contest,
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`where it asked readers to submit photographs of attractive news women. The person submitting the
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`winning photograph would win a Hustler prize pack. Someone sent a letter to Hustler submitting
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`Ms. Bosley as his “Hot News Babe.” (2005 Letter to Hustler, ECF No. 48-6.) He did not attach the
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`photograph but instead stated that he “could send pics, but [Hustler] should have no trouble
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`GOOGLEing them [itself].” (Id.)
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`Defendant published the photograph of Bosley in their “Bits and Pieces” section of the
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`February 2006 issue as a part of their monthly “News Babes” feature. The commentary with the
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`photograph stated:
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`This month’s eye candy is Catherine Bosley from Cleveland’s WOIO
`Channel 19. The anchorwoman not only looks good but apparently
`also likes to party. Previously, while at WXEN in Youngstown, Ohio
`she tendered her resignation after topless shots of the fetching blonde
`at a Florida wet T-shirt contest surfaced all over the Internet. Thanks
`to K.B. for an excellent submission. (ECF No. 48, Ex. 3.)
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`Subsequently, Plaintiffs brought this action, alleging: (1) direct copyright infringement,
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`contributory copyright infringement, and vicarious copyright infringement, all pursuant to 17 U.S.C.
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`§ 101 et seq.; (2) violation of the Ohio common law right to privacy; (3) violation of the right of
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`publicity, pursuant to Ohio Revised Code § 2741 et seq.; (4) violation of the Ohio Deceptive Trade
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`Practices Act, pursuant to Ohio Revised Code § 4165, et seq.; and (5) respondeat superior. (Compl.,
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`Case: 1:08-cv-00491-SO Doc #: 160 Filed: 03/31/11 3 of 17. PageID #: 2280
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`ECF No. 1.) In an Order on December 2, 2008, the court dismissed the claims for violation of the
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`Ohio Deceptive Trade Practices Act and for respondeat superior. (ECF No. 17.) The parties
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`stipulated to dismissal of Plaintiffs’ second and third causes of action for contributory and vicarious
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`copyright liability on April 13, 2009, and the court approved the dismissal on April 22, 2009. (ECF
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`Nos. 31, 32,) In an Order on January 26, 2010, the court granted summary judgment in favor of
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`Defendant on Plaintiffs’ privacy and right of publicity claims. (ECF No. 70.) Therefore, Plaintiffs’
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`direct copyright infringement claim remained.
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`A jury trial began on March 18, 2010. Before the end of trial, Defendant moved for judgment
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`as a matter of law pursuant to Federal Rule of Civil Procedure 50 (ECF No. 137). The court deferred
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`ruling on the Motion. The jury rendered a verdict on March 25, 2010, in favor of Plaintiffs in the
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`amount of $135,000. The jury also found that the Defendant did not act willfully. (Verdict Form,
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`ECF No. 143.) The court denied Defendant’s Motion for Judgment as a Matter of Law (ECF No.
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`137) on March 30, 2010 (ECF No. 144). Defendant then filed the instant Motion for Judgment as
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`a Matter of Law and/or Motion for New Trial and/or to Alter or Amend the Judgment on April 27,
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`2010 (ECF No. 153).
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`II. LEGAL STANDARD
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`A. Rule 50(b)
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`Federal Rule of Civil Procedure 50(b) states:
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`(b) Renewing the Motion After Trial; Alternative Motion for a New
`Trial. If the court does not grant a motion for judgment as a matter of
`law made under Rule 50(a), the court is considered to have submitted
`the action to the jury subject to the court's later deciding the legal
`questions raised by the motion. No later than 28 days after the entry of
`judgment--or if the motion addresses a jury issue not decided by a
`verdict, no later than 28 days after the jury was discharged--the movant
`may file a renewed motion for judgment as a matter of law and may
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`include an alternative or joint request for a new trial under Rule 59. In
`ruling on the renewed motion, the court may:
`(1) allow judgment on the verdict, if the jury returned a verdict;
`(2) order a new trial; or
`(3) direct the entry of judgment as a matter of law.
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`Federal Rule of Civil Procedure 59 states, in relevant part:
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`B. Rule 59
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`(a) In General.
`(1) Grounds for New Trial. The court may, on motion, grant a
`new trial on all or some of the issues--and to any party--as
`follows:
`(A) after a jury trial, for any reason for which a new
`trial has heretofore been granted in an action at law in
`federal court; ...
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`III. LAW AND ANALYSIS
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`A. Allegedly Prejudicial Statements Made During Trial
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`A verdict should be set aside if “there is a reasonable probability that the verdict of [the] jury
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`has been influenced by” improper conduct. Stickland v. Owens Corning, 142 F.3d 353, 358 (6th Cir.
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`1998) (quoting Cleveland v. Peter Kiewit Sons’ Co., 624 F.2d 749, 756 (6th Cir. 1980) (internal
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`citation omitted)). The Sixth Circuit has further explained that, “a new trial is warranted when a jury
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`has reached a seriously erroneous result as evidenced by: (1) the verdict being against the weight
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`of the evidence; (2) the damages being excessive; or (3) the trial being unfair to the moving party
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`in some fashion, i.e., the proceedings being influenced by prejudice or bias.” Holmes v. City of
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`Massillon, 78 F.3d 1041, 1045-46 (6th Cir. 1996) (internal citation omitted). In addition, “failure
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`to object at trial to closing arguments does raise the degree of prejudice which must be demonstrated
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`in order to get a new trial on appeal.” Strickland, 142 F.3d at 358.
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`Defendant objects to six statements made during trial: (1) Plaintiffs’ counsel’s statements
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`about the parties’ comparative wealth; (2) Plaintiffs’ counsel’s statements about Mr. Flynt’s non-
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`appearance and Ms. Flynt’s appearance; (3) Plaintiffs’ counsel’s reference to the role of deterrence
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`when calculating damages; (4) Plaintiffs’ counsel’s reference to Plaintiff as a role model for his
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`daughter; (5) Plaintiffs’ counsel’s statement that the parties stipulated to the existence of copyright
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`infringement; and (6) Plaintiffs’ counsel’s statements about the credibility of Defense witnesses and
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`counsel. In response, Plaintiffs do not cite any case law in support of their arguments that none of
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`the comments Defendant objects to were prejudicial.
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` 1. Modest Means
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`Defendant argues that it was prejudiced by Plaintiffs’ counsel’s comments about how
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`Plaintiffs do not have much money and comments about how Defendant has a great deal of money.
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`During closing arguments, Plaintiffs’ counsel referred to Defendant as Dr. Feigenbaum’s “$1.5
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`million client” and stated that Defendant “provides a tremendous amount of revenue” to Dr.
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`Feigenbaum’s law firm. (Trial Trans., ECF No. 153-1, at pp. 28, 40.) Dr. Feigenbaum, who
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`testified at trial, was the attorney who advised Defendant on the issue of fair use prior to publication
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`of Bosley’s photograph, and a partner of the counsel who represented Defendant at trial. He billed
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`Defendant large sums of money each year to advise Defendant on various matters related to
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`publication. During closing, Plaintiffs’ counsel stated: “[m]aybe whether Mr. Feigenbaum made a
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`mistake is important to their law firm because of the size of the client . . . . Larry Flynt’s company
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`is a tremendously huge, successful company. They sell Hustler Magazine and countless other
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`magazines and products. Revenue from just the magazine is $1 million.” (Id., at pp. 62-63.)
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`Plaintiff’s counsel also stated in regard to another witness, Ms. Howdeshell, who was called as an
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`expert on damages, that she was “an expert who over the course of three cases, has earned almost
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`$100,000 assisting LFP in litigation. ” (Id., at p. 64.) Plaintiff’s counsel also stated that LFP’s
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`lawyers were on a retainer of “a million, five.” (Id.) Plaintiffs’ counsel also contrasted Defendant’s
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`and Plaintiffs’ wealth, stating that Plaintiffs were “[p]eople of modest means” and categorized
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`Defendant as a company that publishes copyrighted photographs because it “can.” (Id.)
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`Plaintiffs point out that Defendant did not object to these statements when they were made.1
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`However, the fact that counsel did not make a contemporaneous objection does not prevent the court
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`from ordering a new trial. See Igo v. Coachmen Industries, 938 F.2d 650, 654 (6th Cir. 1991) (The
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`court determined, among other things, that the conduct of the plaintiffs’ counsel was so outrageous
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`that it warranted a new trial even though the defense counsel did not contemporaneously object to
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`plaintiffs’ counsel’s conduct.).
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`Plaintiffs argue that it was proper to mention the amount of money Defendant’s law firm
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`makes from having Defendant as a client because it shows potential bias of Dr. Feigenbaum. (Pls.’
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`Mot. in Opp., ECF No. 156, at pp. 5-6.) Plaintiffs further argue that the amount of money Defendant
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`paid Ms. Houdeshell is relevant because it goes to the issue of her credibility and bias. (Id., at p. 6.)
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`Finally, Plaintiffs argue that the reference to Plaintiffs’ “modest means” was appropriate because
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`Defendant’s counsel argued in closing that the case was only about money. (Id.)
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`(a) Comments about Mr. Feigenbaum and Ms. Howdeshell
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`Plaintiffs’ counsel’s comments about Mr. Feigenbaum and Ms. Howdeshell are well within
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`1
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`Although Defendant did not object to every statement of Plaintiffs’ counsel that it
`now takes issue with in its Motion, Defendant objected after Plaintiff’s counsel
`made the following statement in closing: “Larry Flint’s company is a
`tremendously huge, successful company. They sell Hustler Magazine and
`countless other magazines and products. Revenue from just the magazine is $1
`million.” (Trial Trans., at p. 63.)
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`the bounds of permissible comments by counsel, as they relate to the witnesses’ credibility and bias.
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`The fact that both witnesses earn money from Defendant is relevant to judge their credibility. The
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`fact that Mr. Feigenbaum is a partner of Defendant’s trial counsel and has been on retainer for
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`Defendant is further relevant to his credibility. The fact that Ms. Howdeshell has testified several
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`times before on behalf of Defendant is relevant to her credibility also. See Popvich v. Sony Music
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`Entertainment, Inc., No 1:02CV359, 2005 WL 1126756, at *6 (N.D. Ohio May 2, 2005) (“All
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`experts have some bias, and a [fact finder] may take such bias into account when evaluating the
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`credibility of a witness’ testimony.”); Communities for Equity v. Michigan High School, Athletic
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`Ass’n., No. 1:98-CV-479, 2007 WL 5830967, at *3 (W.D. Mich. May 2, 2007) (“As for Defendants’
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`claim of bias, this may or may not be true. This, however, goes to the weight of the evidence and
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`not its admissibility.”). (See also Jury Instructions, at p. 15 (listing “[d]id the witness have an
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`interest in the outcome of this case or any bias or prejudice concerning any party or any matter
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`involved in the case?” as a question a juror must ask him or herself about the credibility of the
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`witnesses.) Counsel can review facts brought up during trial. This is all that Plaintiffs’ counsel did.
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`Therefore, the comments about the financial relationship between Mr. Feigenbaum and Ms.
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`Howdeshell speaks to whether or not they are biased in favor of Defendant.
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`(b) Comments Comparing Wealth of Plaintiffs and Defendant
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`A more in-depth analysis is necessary to determine whether Plaintiffs’ counsel’s comments
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`that Plaintiffs were of “modest means” and that “the money stand[s] [with] LFP” were prejudicial.
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`Not all references to a party’s wealth by counsel require a new trial. The court, in the case of
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`Eisenhauer v. Burger, 431 F.2d 833, 838 (6th Cir. 1970), which Defendant cites, determined that
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`it is improper for a counsel to make arguments related to the plaintiff’s financial situation. However,
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`the court determined that counsel’s comments in that case were not prejudicial and therefore did not
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`require a new trial. Similarly, in Strickland 142 F.3d at 359, the Sixth Circuit determined that,
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`“[a]lthough there was an ‘us-against-the-powerful-corporation’ flavor to Plaintiff’s closing remarks,
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`. . . we believe those remarks were not so prejudicial as to mandate a new trial, especially where no
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`objection was raised at the first trial. ” Id., at 359.
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`The cases Defendant relies on are distinguishable from the present case. Defendant argues
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`that Igo, 938 F.2d 650, stands for the proposition that a new trial must be ordered if an attorney
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`references a party’s wealth during closing arguments. However, the statements made by counsel
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`in Igo were far more egregious than Plaintiffs’ counsel’s references to Mr. Feigenbaum’s
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`compensation, Defendant’s revenue, and Plaintiffs’ economic position. In Igo, the Court ordered
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`reversal of the verdict and remanded for a new trial because the plaintiffs’ counsel made many “wild
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`unsubstantiated attacks” against the defendant, including that “[d]efendant was only sorry that
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`[p]laintiffs had survived the accident,” the plaintiffs’ counsel stated that the defendant had made
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`them “fight for five years and 11 months” to get to court when in fact it was the plaintiffs who
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`delayed two years before filing the suit, and because plaintiffs’ counsel referred to defendant as a
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`“billion-dollar corporation.” Id., at 653-54, 659. The court in Igo also reversed the district court’s
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`denial of the defendant’s motion for judgment notwithstanding the verdict on the issue of damages
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`because “evidence of damages” were “clearly insufficient, as a matter of law.” Id., at 659.
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`Therefore, the facts in Igo were far more egregious than the statements made by Plaintiffs’ counsel
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`in the present case. In Pingatore v. Montgomery Ward & Co., 419 F.2d 1138 (6th Cir. 1969), which
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`Defendant also cites for the proposition that reference to a party’s wealth during closing arguments
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`requires a new trial, the court determined that plaintiff’s counsel acted improperly during trial by
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`shouting curse words while slamming his hand on the counsel table, placing an empty chair in front
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`of the jury and asking “where is the corporation today?”, pointing an accusatory finger at
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`defendant’s attorney and that empty chair, and ripping large sheets of paper down from a
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`blackboard, crumpling them, and throwing them behind a table while saying “lies.” Id., at 1142.
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`The court reversed and remanded the case for a new trial on the issue of the amount of damages, but
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`not on the question of liability, as the court found that, “[t]here is substantial evidence to support the
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`verdict of the jury on the question of liability.” Id., at 1143-44. Again, the facts in Pingatore were
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`far more egregious than the allegations in the present case.
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`The court finds that Plaintiffs’ counsel’s statements are more similar to those in Eisenhauer,
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`Strickland, or Bridgeport Music, Inc. v. Justin Combs Pub., 507 F.3d 470, 478-79 (6th Cir. 2007).
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`In Eisenhauer, 431 F.2d at 837, a case involving a personal injury to the plaintiff’s decedent brought
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`against a corporate defendant, the plaintiff’s counsel’s opening statement included background about
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`the plaintiff’s economic situation, including that he lives in a “house trailer, with his wife.” The
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`court did not find this statement to be so prejudicial as to require a new trial. In Strickland 142 F.3d
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`at 359, the plaintiff’s counsel in closing argument asked the jury to base its award in part on the
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`defendant’s net worth or income.2 The court determined that the defendant was not prejudiced by
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`the statements in closing argument. In Bridgeport, 507 F.3d at 478-79, the plaintiffs’ counsel
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`emphasized that the defendants were from New York City and the plaintiff was from the same place
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`2
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`The plaintiff’s counsel stated: “You can tell a manufacturer, your product is
`unsafe, and your voice will be heard.... You come in here as the voice of the
`community.... Do you want to live in a world where Owens Corning makes the
`rules.... You have an opportunity ... to tell Owens Corning, to tell the world where
`you stand, whether you stand for safe products and decency.” Strickland, 142
`F.3d at 358.
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`as where the trial took place, Nashville, Tennessee. The plaintiffs’ counsel also referred to one of
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`the defendants as a “multi-million dollar company.” Id., at 479. The court did not find that the
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`defendants in Bridgeport were prejudiced by these statements. Therefore, the court determines that
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`the comments Plaintiffs’ counsel made about Defendant’s wealth did not prejudice Defendant and
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`therefore do not warrant a new trial or an amended verdict.
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`2. Mr. Flynt’s Non-Appearance and Ms. Flynt’s Appearance
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`Defendant argues that it was improper for Plaintiffs’ counsel to suggest that Ms. Flynt was
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`present in order to have a woman appear to represent a pornographic magazine and that Mr. Flynt
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`could have been Defendant’s representative at trial. Defendant further argues that: (1) it was
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`improper for Plaintiffs’ counsel to state that he thought that Mr. Flynt’s non-appearance was
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`important; (2) Plaintiffs’ counsel “made himself an unsworn witness and injected material into the
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`trial that was outside the record”; and (3) it was improper for Plaintiffs’ counsel to “induce the jury
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`to think that Ms. Flynt was ‘a plant’ and that Mr. Flynt had done something wrong by not attending
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`in person.” (Def.’s Renewed Mot. for Judg. as a Matter of Law and/or Mot. for a New Trial and/or
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`to Alter or Amend the Judgment, ECF No. 153, at pp. 5-6.) The exact language of Plaintiffs’
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`counsel’s comments is:
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`I think it’s important that Mr. Flynt isn’t here. Mr. Manna suggested
`do you want him to travel with his wheelchair. That man travels all
`over the country. Celebrating my father’s 70th birthday, I saw him in
`Michigan. He travels. He could have traveled. He didn’t travel for a
`reason, and I think it’s important, ladies and gentlemen, who is their
`trial representative? Ms. Flynt. She had nothing to do with this
`magazine at all. She didn’t get up and testify, but she is a woman, and
`doesn’t it make it seem more reasonable if you’ve got a woman
`representing your pornographic magazine? That’s why Mr. Flynt is not
`here, ladies and gentlemen.
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`(Trial Trans., at p. 61.) Defendant did not object after Plaintiffs’ counsel made this statement.
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`The Sixth Circuit has determined that “the personal opinion of counsel has no place at trial.”
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`United States v. Bess, 593 F.2d 749, 754 (6th Cir. 1979). However, when an improper comment
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`only takes up a “brief moment” in a closing argument, courts rarely find the improper comment to
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`be reversible error. E.g., Ramsey v. Am. Air Filter Co., Inc., 772 F.2d 1302, 1311 (7th Cir. 1985).
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`In Canada Dry Corp. v. Nehi Beverage Co., Inc. of Indianapolis, 723 F.2d 512, 526-27 (7th Cir.
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`1983), the plaintiff’s counsel stated in closing argument: “I’m convinced that both [the president of
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`the company plaintiff and the company plaintiff itself] are the persons who have been hurt badly by
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`conduct on the part of Canada Dry that is without justification under any circumstances.” The court
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`determined that these personal remarks of counsel were improper but did not amount to reversible
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`error. The court reasoned:
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`Under these particular circumstances, the length of the closing
`argument and the brevity of the improper remarks and the trial judge’s
`reminder to the jury that statements of counsel are not evidence (Tr.
`3435-36), we find that these remarks, while improper and erroneous,
`were harmless error, and that the trial court did not abuse its discretion
`in refusing to grant a new trial on this basis.
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`Id., at 527.
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`The fact that Plaintiffs’ counsel improperly stated that it was likely that Mr. Flynt was able
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`to travel was not relevant to the issue of fair use that the jury had to determine, but this statement
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`took up very little of the closing argument. Furthermore, the jury was instructed that arguments of
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`counsel are not evidence. Therefore, the court finds that judgment as a matter of law in favor of
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`Defendants, a new trial, or an amended judgment are not warranted on this objection.
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`3. Plaintiff’s Counsel told the Jury to Consider a Deterrence Effect
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`Plaintiffs’ counsel stated, during closing arguments that, “yes we’re asking for money.
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`There’s no question about it. But, the law permits us to do that because part of the statute Mr.
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`Manna didn’t tell you about is a deterrent effect. A deterrent to deter people from violating other’s
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`copyrights.” (Trial Trans., at p. 65.) Defendant argues that:
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`juries cannot be told directly or in effect that they may consider
`punishment or deterrence as an element of damage and include that
`sum of money in their verdict so as to punish the defendant or deter
`others from like conduct unless the pleadings, evidence and instructions
`warrant a separate submission of punitive damages under the law.
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`Vanskike v. ACF Industries, Inc., 665 F.2d 188, 210 (8th Cir. 1981). Therefore, Defendant argues
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`that the award of $135,000 was excessive and that a new trial or a remittitur is necessary. Plaintiffs
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`argue that it was proper for their counsel to explain the deterrence purpose of the copyright statute
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`because Defendant’s counsel had explained other purposes of the statute during his closing
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`arguments.
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`The court does not find that Plaintiffs’ counsel’s statements prejudiced Defendant. The Jury
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`Instructions explained that Plaintiffs were entitled to the profits attributable to infringement
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`assuming that the jury found infringement and that the Plaintiffs proved gross revenue by a
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`preponderance of the evidence. (Jury Instructions, ECF No. 138, at p. 27.) Further, given that the
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`jury found that Defendant did not act willfully, and the award was only for $135,000, in the face of
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`testimony and argument by Plaintiffs that the case was worth much, much more, the court finds that
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`it is not probable that the jury increased the monetary award in order to deter Defendant or other
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`potential defendants in the future. (Verdict, ECF No. 143, at pp. 2-3.) See e.g., Strickland, 142 F.3d
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`at 359 (“[T]he jury’s total damage award of $1,767,462, consisting primarily of $1,500,000 for
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`Hagan’s pain and suffering, is not so large as to indicate that the jury intended to punish
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`Defendant.”)
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`4. Plaintiff’s Counsel Referred to Plaintiff Bosley as a Role Model for His Daughter
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`Plaintiffs’ counsel stated during closing arguments:
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`I have a daughter, who’s the most important thing in my life, and I tell
`her it’s okay to make mistakes, nobody is perfect. Stand up for what
`you believe in and don’t give up. That’s what I tell her. Catherine
`Bosley, you made a mistake. You took your clothes off. Okay. You
`can’t take that back. But, if my daughter turns out like Catherine
`Bosley, if she is able to live up to that role model of not giving up and
`sticking up for what she believes in, I will be one proud father.
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`(Trial Trans., at p. 65.)
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`Plaintiffs argue that their counsel’s statements were appropriate because Defendant’s counsel
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`degraded Ms. Bosley’s character and motives during his closing argument, so Plaintiffs’ counsel
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`merely rebutted this argument by referring to Ms. Bosley as a good role model for his young
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`daughter. (Pls.’ Opp. to Mot., ECF No. 157, at p. 8.)
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`While it is true that an attorney cannot inject his own personal opinions into a closing
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`argument, Polansky, 852 F.2d at 628, the court finds that Plaintiff’s counsel’s statements did not
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`prejudice Defendant. At best, the comment suggests that Balsley stood up for the principle that she
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`believed in taking on her case even though it would again expose her story to the public. The court
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`cautioned the jury not to be persuaded by sympathies in its jury instructions. (Jury Instructions, ECF
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`No. 139, at p. 2 (“You must perform your duties as jurors without bias or prejudice as to any party.
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`The law does not permit you to be controlled by sympathy, prejudice, or public opinion. All parties
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`expect that you will carefully and impartially consider all of the evidence, follow the law as it is now
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`being given to you, and reach a just verdict, regardless of the consequences.”).) Therefore, the court
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`denies Defendant’s Motion in this regard.
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`5. Plaintiff’s counsel stated that Defendant Stipulated to the Existence of Copyright
`Infringement
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`During his opening statement, Plaintiffs’ counsel stated that the parties had stipulated to the
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`existence of copyright infringement. (Trial Trans., at pp. 37-39.) Defendant maintains that it did
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`not stipulate to the existence of an infringement because a fair use of copyrighted material does not
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`constitute an infringement. 17 U.S.C. § 107. Defendant argues that the prejudice was made worse
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`when the court told Plaintiffs’ counsel, “why don’t you clarify because I think everybody is in
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`agreement about the case.” (Def.’s Renewed Mot. for Judg. as a Matter of Law and/or Mot. for a
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`New Trial and/or to Alter or Amend the Judgment, ECF No. 153, at p. 15.) In response, Plaintiffs
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`properly noted that, when Plaintiffs’ counsel resumed his argument, he did clarify that the parties
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`had stipulated to the elements of a copyright infringement claim but that Defendant was asserting
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`a fair use defense. The jury was advised on many occasions that fair use, “constituted a complete
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`bar to any infringing activity.” (Pls.’ Opp. to Mot., ECF No. 157, at p. 9.) Thus, there is no merit
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`to this claim.
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`Furthermore, the court explained to the jury that fair use was a defense to Plaintiffs’
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`copyright claim. The Jury Instructions stated: “Defendant denies infringing the copyright and
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`contends that its use of the subject photograph was protected by the doctrine of fair use. There is no
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`copyright infringement where a defendant makes fair use of a copyrighted work.” (Jury Instructions,
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`ECF No. 138, at p. 20.) The Jury Instructions further explained the four factors the jury must
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`consider when determining whether Defendant proved the fair use defense by a preponderance of
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`the evidence and stated that, “Defendant contends that it is not liable to Plaintiffs based upon the
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`doctrine of fair use. The doctrine of ‘fair use’ is a privilege in others than the owner of a copyright
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`to use the copyrighted material in a reasonable manner without his consent, not withstanding the
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`monopoly granted to the owner.” Therefore, the court finds that Plaintiffs’ counsel’s opening
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`Case: 1:08-cv-00491-SO Doc #: 160 Filed: 03/31/11 15 of 17. PageID #: 2292
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`statements about the existence of a copyright infringement were not prejudicial. The court hereby
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`denies Defendant’s Motion on this issue.
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`6. Alleged Implications that Defense Witness and Defense Counsel were not Credible.
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`Defendant argues that it was prejudiced when the court instructed Plaintiffs’ counsel, during
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`his opening statement, regarding what was permissible to say in describing the anticipated testimony
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`of that he could say in regard to Mr. Feigenbaum, Defendant’s witness and legal counsel. Defendant
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`objected when Plaintiffs’ attorney stated in opening: “[n]ow you’re going to see the lawyer testify
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`. . . I don’t want you to lose sight of the fact – or sight of the concept of who this lawyer is. This is
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`not some independent lawyer. This is a lawyer who –.” At this point, Defendant objected and said,
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`“it’s argumentative, Judge. He’s arguing.” The court clarified, in response to the objection, that
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`Plaintiffs’ counsel could say: “Okay. Okay. I’ll allow you very limited latitude. I agree, it’s
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`argument. You can say, ‘I don’t think you will find him believable because,’ and then move on.”
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`After the court made the above clarification, Plaintiffs’ counsel stated that “Bill Feigenbaum[] is law
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`partners with Mr. Manna and Mr. Reina. He is a lawyer in this case defending Hustler. You need
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`to think about that in judging his credibility and where his bias lies.” (Trial Trans., at pp. 45-6.)
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`Defendant does not provide the court with any case law in support of its argument that
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`Plaintiffs’ counsel’s statements about Mr. Feigenbaum and Defendant’s attorneys were improper
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`and prejudicial. Plaintiffs argue that they had “every right” to discuss the credibility of Defendant’s
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`witnesses during opening or closing statements. (Pls.’ Opp. to Mot., ECF No. 157, at p. 9.) As
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`discussed above, counsel can make note of facts in opening and closing arguments that are relevant
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`to the determination of credibility. The court finds that the comment with regard to Mr. Feigenbaum
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`is totally within bounds as a comment on his credibility, but in any event, the court finds that it was
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`not prejudicial.
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`The court finds that there is no reasonable probability that verdict would have been different
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`had Plaintiffs’ counsel not made the above statements. Therefore, the court denies Defendant’s
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`Motion in this regard.
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`B. The Verdict is Not Against the Weight of the Evidence
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`1. Defendant’s Motion in Limine No. 1
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`Defendant argues that the court erred by denying Defendant’s Motion in Limine No. 1. In
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`that Motion, Defendant requested that the court preclude Plaintiffs from introducing evidence at trial
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`concerning compensatory damages the Plaintiffs allegedly sustained (ECF No. 64, at p. 1). The
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`court, speaking on the record, granted in part and denied in part Defendant’s Motion in Limine.
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`Defendant argues that as a result of the court’s decision to deny part of Defendant’s Motion in
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`Limine No. 1, the verdict is against the weight of the evidence and excessive.
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`2. Nexus between Hustler’s Revenue and Bosley’s Photograph
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`Defendant argues that Plaintiffs did not meet their initial burden to show that “there was a
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`reasonable nexus or relationship between the profits LFP earned and Plaintiffs’ photograph.” (Def.’s
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`Motion for Judgment as a Matter of Law and/or Motion for a New Trial and/or