Case: 3:15-cv-00298-wmc Document #: 327 Filed: 06/29/18 Page 1 of 25
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WISCONSIN
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`AMY LEE SULLIVAN,
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`v.
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`FLORA, INC.,
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` OPINION AND ORDER
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`15-cv-298-wmc
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`Plaintiff,
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`Defendant.
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`Plaintiff Amy Lee Sullivan asserted copyright infringement claims and related unjust
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`enrichment claims against defendant Flora, Inc., based on Flora’s use of Sullivan’s
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`illustrations. This case was tried to a jury, who (1) rejected defendant’s joint works defense
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`(Jury Verdict Phase I (dkt. #251)), (2) found in favor of plaintiff on both her copyright
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`infringement and unjust enrichment claims (Jury Verdict Phase II (dkt. #253)), and (3)
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`awarded her $143,500 in actual damages for copyright infringement, $3,600,000 in
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`statutory damages for copyright infringement and $350,000 in damages for unjust
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`enrichment (Damages Verdict (dkt. #257)). Not surprisingly, plaintiff opted for the
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`statutory over the actual damages award for the copyright infringement claim, and the
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`court entered judgment in her favor, resulting in a total damages award of $3,950,000.
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`(5/16/17 Op. & Order (dkt. #278); Judgment (dkt. #279).)
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`Before the court are a number of post-trial motions. Defendant seeks remittitur of
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`the damages award or a new trial on damages as excessive or violating substantive due
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`process. (Dkt. #295.) For the reasons described below, the court agrees that the amount
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`of the jury’s statutory award for copyright infringement is very high, but not “monstrously
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`excessive,” without a rational connection to the evidence or outside a rough comparison to
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`Case: 3:15-cv-00298-wmc Document #: 327 Filed: 06/29/18 Page 2 of 25
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`similar cases. Similarly, the award for unjust enrichment is neither excessive, nor against
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`the manifest weight of the evidence. The court also rejects defendant’s argument that
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`awards, falling well within the statutory range, “shocks the conscious.” Sullivan also filed
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`her own motion for an award of attorney fees and related non-taxable expenses. (Dkt.
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`#386.) Because the court finds that defendant’s joint works defense was objectively
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`reasonable and that there are no other circumstances that would warrant fee-shifting, the
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`court will deny that motion as well. Even so, plaintiff is entitled to statutory costs pursuant
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`to Federal Rule of Civil Procedure 54(d)(1) in the amount of $30,215.13. (Dkt. #284.)
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`Finally, the parties filed related motions concerning execution of the judgment. The court
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`will grant defendant a brief stay of 45 days to arrange a bond or other acceptable surety,
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`or obtain a further stay from the Seventh Circuit. If defendant fails to accomplish one
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`these steps, plaintiff will be free to proceed to enforce the judgment.
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`I. Defendant’s Motion for Remittitur or a New Trial
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`OPINION
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`Defendant Flora seeks remittitur of the jury’s statutory damages award of
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`$3,600,000.00, to $30,000.00, based on a theory that: (1) the jury only had a basis for
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`finding infringement of, and thus awarding statutory damages for, 11 of the 33 copyrighted
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`illustrations; (2) the jury had no basis for finding that the infringement was willful; and (3)
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`an award at the statutory maximum for non-willful infringement is capped at $30,000 per
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`work. Defendant also seeks remittitur of the award for unjust enrichment of $350,000.00,
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`arguing that plaintiff Sullivan failed to prove any benefit to defendant and the record only
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`2
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`Case: 3:15-cv-00298-wmc Document #: 327 Filed: 06/29/18 Page 3 of 25
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`reflected three foreign-language productions of the Flor-Essence video. Alternatively,
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`defendant seeks a new trial on damages.
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`In reviewing a request for remittitur, the court is to consider: “(1) whether the
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`award is monstrously excessive; (2) whether there is no rational connection between the
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`award and the evidence; and (3) whether the award is roughly comparable to awards made
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`in similar cases.” Deloughery v. City of Chi., 422 F.3d 611, 619 (7th Cir. 2005). In reviewing
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`a request for a new trial under Federal Rule of Civil Procedure 59, the court considers
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`whether the “verdict is against the manifest weight of the evidence.” Mejia v. Cook Cnty.,
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`Ill., 650 F.3d 631, 633 (7th Cir. 2011).
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`As an overarching matter, plaintiff contends that defendant should not be able to
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`raise insufficiency of the evidence challenges in the context of a Rule 59 motion, having
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`failed to move before the case was submitted to the jury under Rule 50(a) or to renew the
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`motion under Rule 50(b). (Pl.’s Opp’n (dkt. #313) 4-5.) Although that sanction would
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`be too harsh, Rule 59 may not be used to raise new theories or arguments that could have
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`been presented before judgment was entered. See Uphoff v. Elegant Bath, Ltd., 176 F.3d
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`399, 410 (7th Cir. 1999) (“Rule 59(e) may not be used to raise novel legal theories that a
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`party had the ability to address in the first instance.”). Accordingly, the court will consider
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`the merits of defendant’s various arguments in light of whether it could have raised them
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`in a Rule 50(a) motion.
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`Case: 3:15-cv-00298-wmc Document #: 327 Filed: 06/29/18 Page 4 of 25
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`A. Statutory Damages Award for Copyright Infringement
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`i. Number of Works
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`First, defendant contends that while plaintiff’s copyrights cover 33 illustrations,
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`plaintiff only introduced evidence to support a finding of infringement as to 11 of those
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`illustrations.1 This finding is material because the jury was instructed to award statutory
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`damages by individual work, as the law directs (Damages Instr. (dkt. #254) 2), and the
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`court had previously determined that each illustration constituted a separate work.
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`(4/17/17 Order (dkt. #240).)
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`In response, plaintiff directs the court to Exhibit 384, containing the digital files of
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`her copyrighted illustrations that Sullivan testified without contradiction were found on a
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`hard drive copied from Flora’s own computer system. (Trial Tr. (dkt. #276) 60.) That
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`Exhibit also describes the illustrations Flora used in foreign language productions. (Ex.
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`384 (listing illustrations used in the Greek, Spanish and Chinese Flor- Essence videos,
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`among others).) From this, a reasonable jury could infer that all 33 illustrations were used
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`by Flora in violation of Sullivan’s copyrighted works. In addition to Sullivan’s testimony
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`as to the use of her protected works reflected in Flora’s records and advertisements, plaintiff
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`notes the testimony of Flora’s own employees, who acknowledged their use of her
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`illustrations in other promotional materials and Flora’s efforts to modify the illustrations
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`to avoid Sullivan’s claims of copyright infringement, which the jury could reasonably have
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`found was insufficient. (Pl.’s Opp’n (dkt. #313) 7.)
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`1 A detailed description of the nature of plaintiff’s multi-layered, original source art, including
`examples of copyrighted illustrations can be found in the court’s summary judgment decision. (Dkt.
`#101.)
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`Case: 3:15-cv-00298-wmc Document #: 327 Filed: 06/29/18 Page 5 of 25
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`Supplemented by this testimony from Sullivan and various Flora employees,
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`therefore, a reasonable jury could have relied on Exhibit 384 to conclude that Flora
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`continued to use either the original illustrations (or modified versions of those illustrations
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`that still infringed Sullivan’s copyright) well beyond the scope of the originally limited
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`license. Indeed, this finding was probably inevitable in light of defendant’s failure to
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`develop any responsive evidence or argument during the course of trial, especially in the
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`damages phase, that the jury should only award statutory damages based on some subset
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`of Sullivan’s illustrations. Accordingly, the court rejects any challenge to the statutory
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`damages award on this basis, finding the jury’s award for all 33 works had a rational
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`connection to the evidence for purposes of defendant’s motion for remittitur and is not
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`against the manifest weigh of the evidence for purposes of defendant’s motion for a new
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`trial.
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`ii.
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`Jury’s Consideration of Various Factors
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`Next, defendant challenges the jury’s statutory damages award on the basis that the
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`jury disobeyed the court’s instructions in arriving at the $3.6 million award. Specifically,
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`the jury was instructed that they may consider the following factors:
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`the expenses that defendant saved and the profits that it earned because of
`the infringement;
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`the revenues that plaintiff lost because of the infringement;
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`the difficulty of proving plaintiff’s actual damages;
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`the circumstances of the infringement;
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` whether defendant intentionally infringed plaintiff’s copyright; and
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` deterrence of future infringement.
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`(Damages Instr. (dkt. #254) 3.)
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`Consistent with the law, the jury was neither instructed that they had to consider
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`all of these factors, nor how they should weigh each of the factors; rather, they were told
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`these factors simply provided guidance on how to consider a per work award of $750 to
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`$30,000, or up to $150,000 if the jury found that defendant willfully infringed plaintiff’s
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`copyright. Nevertheless, defendant now speculates that the jury’s treatment of three of
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`the factors either compels remittitur or a new trial. The court addresses each of these three
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`factors below.
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`a. Flora’s Profits
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`First, defendant argues that despite there being no evidence of defendant’s profits
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`earned because of the infringement, the jury must have “guessed at Flora’s profits” and
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`used that guess to support “this oppressive and disproportionate award.” (Def.’s Br. (dkt.
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`#296) 13.) As context, the court previously determined that plaintiff could not pursue an
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`actual damages award based on defendant’s lost profits because of this lack of evidence.
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`(4/25/17 Op. & Order (dkt. #261) 1-7.) Still, defendant never objected to including both
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`expenses saved and profits earned in the factors listed consistent with the pattern jury
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`instructions.
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`During deliberations on damages, the jury submitted a question asking for
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`defendant Flora’s annual profits from 2014, 2015 and 2016 from the sales of two infringing
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`products, 7 Sources and Flor-Essence. (Court Ex. 19 (dkt. #258-19).) Because there was
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`no evidence breaking out profits attributable to the infringement, the court instructed the
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`jury that “Your decision must be based on the evidence in the record.” (Court Ex. 20 (dkt.
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`Case: 3:15-cv-00298-wmc Document #: 327 Filed: 06/29/18 Page 7 of 25
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`#258-20).) Approximately 30 minutes later, the jury rendered their verdict. Defendant
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`engages in rank speculation as to the importance of this brief exchange based solely from
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`the short gap between the court’s answer and the jury’s verdict.
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`Not only does defendant’s speculation run contrary to the evidence and instructions
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`given to the jury, but it is much more likely that the jury understood the court’s response
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`as confirming that there was no evidence as to defendant’s profitability. Moreover, there
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`is nothing in the record to support defendant’s contrary theory. See CSX Transp., Inc. v.
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`Hensley, 556 U.S. 838, 841 (2009) (“[J]uries are presumed to follow the court’s
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`instructions.”). If anything, the quick turnaround suggests the jury finished its
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`deliberations with renewed understanding that profits were not a factor they could
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`meaningfully consider. Finally, since copyright law did not require plaintiff to prove
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`defendant’s profits from infringement, any failure to provide the jury with a sense of those
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`profits falls as much on defendant as plaintiff. Having taken a chance by not providing
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`evidence on this guidepost, despite being in the best position to do so, defendant has little
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`basis to complain about the jury choosing not to consider it (or even assuming the answer
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`would likely be unhelpful to defendant).
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`b. Difficulty in Proving Actual Damages
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`Next, defendant contends that there was no evidence to support a jury finding that
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`it was difficult to prove plaintiff’s actual damages, since the jury awarded her $143,500 in
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`actual damages. This is a silly argument, however, since it is perfectly consistent to award
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`known damages, while acknowledging that the evidence was not sufficient to determine
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`other, less well known damages. Plaintiff concedes as much by contending that the jury’s
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`award may not reflect plaintiff’s actual damages, especially in light of the court’s ruling
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`excluding expert testimony on a reasonable royalty rate.
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`Moreover, since the jury was not aware that plaintiff could elect between the
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`statutory and actual damages awards, they may have awarded a conservative amount for
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`her actual damages to ensure that she did not receive a windfall. Regardless, the court
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`presumes the jury awarded each category of damages based on the evidence and
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`instructions on the law, which in its experience is generally the case. Regardless, the jury
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`was not required to weigh the difficulty in proving actual damages heavily, nor is there any
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`basis for finding that the jury’s award of actual damages runs counter to that instruction.
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`c. Plaintiff’s Lost Revenues
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`Finally, defendant contends that there was “no evidence in the record that plaintiff
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`lost $3.6 million in revenue because of the infringement.” (Def.’s Opening Br. (dkt. #296)
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`15.) Here, too, defendant fundamentally misunderstands the nature of the multi-factor
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`test provided to the jury. The jury need not find that the statutory damages award matched
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`plaintiff’s lost revenues. To the contrary, plaintiff’s lost revenues were merely one of
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`several factors in a non-exclusive list that the jury could weigh in arriving at its statutory
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`damages award.
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`Even so, the court acknowledges that the statutory award far exceeds the original
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`charge for plaintiff’s copyrighted work of $5,500, even accounting for the fact that its
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`authorized use was expressly limited and that her copyright was for a unique “style” and
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`“feel” that plaintiff was careful to protect. In particular, the court is concerned about the
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`lack of mooring of the statutory award given the relatively small fee, the likelihood that
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`given an unrestricted use fee would likely have been negotiated at a reasonable multiple of
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`the original fee, and lack of evidence of plaintiff charging a substantially larger multiple for
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`unrestricted use of her work in any context.
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`Offsetting these concerns, however, are the defendant’s failure to make most of
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`these arguments to the jury, defendant’s apparent cavalier disregard of plaintiff’s copyright
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`even after being specifically reminded of the express contractual limit on its use in any
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`other advertising campaign, and Congress’s deliberate, significant increase in the range of
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`statutory awards without reference to any cap based on plaintiff’s proof of lost revenue or
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`profits.2 Moreover, as a one person shop, the plaintiff’s fixed costs were likely quite small
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`and the marginal time spent in creating likely small given that her work had been largely
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`created already through her use of computer modeling of the style that originally attracted
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`Flora in the first place. Plus, it was reasonable for the jury to assume that the original bid
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`was something of a loss leader, given the prospect of lucrative fees from defendant’s use of
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`her copyright in future campaigns, which the jury was obviously persuaded defendant
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`proceeded to do, albeit without compensation to plaintiff.
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`d. Other Factors
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`Accordingly, none of defendant’s speculation about how the jury may have
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`considered or weighed the three factors that are arguably least supportive of a large
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`statutory damages undermine the jury’s award -- especially when the jury was free to
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`2 Congress increased the statutory damages range per work from $250 to $10,000 to $750 to
`$30,000 for knowing infringement, and increased the maximum award for willful infringement from
`$100,000 to $150,000, as part of the Digital Theft Deterrence and Copyright Damages
`Infringement Act of 1999. Act of Dec. 9, 1999, Pub. L. 106-160, 113 Stat. 1774.
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`consider and weigh the listed factors as they saw fit, as well as other factors not explicitly
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`identified in the court’s instructions. In short, within the bounds of statutory limits, the
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`jury was asked to and apparently did engage in a classic weighing of factors, which is now
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`due substantial deference from this court. As a result, even if these factors, viewed in
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`isolation, do not support the jury’s award, it does not render the award “oppressive and
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`disproportionate,” as defendant now argues. (Def.’s Opening Br. (dkt. #296) 13.)
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`Contrary to defendant’s positions, the jury could have reasonably relied upon, or
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`placed the greatest weight on, the last three factors to arrive at its award: (1) the
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`circumstances of the infringement; (2) whether defendant intentionally infringed plaintiff’s
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`copyright; and (3) deterrence of future infringement. (See Pl.’s Opp’n (dkt. #313) 10-13.)
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`Indeed, the facts of record here support a reasonable jury’s award of a substantial statutory
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`damages award. This is not to say that the court would have arrived at the same statutory
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`damages award. Although a statutory award above $1 to $2 million dollars would have
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`struck the court as excessive, even allowing for the need to send a sufficient deterrence
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`here, that is not the standard of review. Under the appropriate standard, this court is
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`unable to find the jury’s award to be wholly unreasonable, much less “monstrously
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`excessive,” without a rational connection to the evidence, or roughly incomparable to
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`similar cases, nor that it is against the manifest weight of the evidence. Indeed, despite
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`remarkable underlawyering by defense counsel, particularly in the damage phase of trial,
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`the jury clearly understood that the purpose of statutory damages extend well beyond the
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`actual damages suffered by Sullivan, especially where willful or reckless disregard of
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`copyrights are involved. Indeed, the jury award of $143,500 in compensation for
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`defendant’s extensive, unauthorized use of plaintiff’s copyrighted works was reasonably
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`commensurate with the relatively small sum of $5,500 that she was paid by defendant for
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`the original, limited use of her work. Rather than award some irrationally larger number
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`in reaching statutory damages, the jury was obviously struck by defendant’s recklessness
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`in the continued, unauthorized and extensive use of her work in commercial, online
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`advertising campaigns for its products around the world, and ultimately the need to
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`reprimand and deter similar misuse of copyrighted works for unauthorized purposes.
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`Moreover, for reasons expanded upon further in Section II of this opinion, the court finds
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`this award to have a rational connection to the relatively one-sided evidence presented at
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`trial. Finally, as also explained in Section II below, defendant has failed to convince the
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`court that the jury’s award here is not roughly comparable to awards made in similar cases.
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`iii. Willfulness Finding
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`Based on the facts presented at trial, it appears that the jury awarded roughly
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`$110,000 per work ($3.6 million total award, divided by the 33 illustrations). In reaching
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`the $3.6 million award, therefore, the jury necessarily found that defendant willfully
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`infringed plaintiff’s copyright. Otherwise, the jury’s award would have been capped by
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`statute at $30,000 per work for a total of $990,000. The jury instructions stated
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`“[i]nfringement is considered ‘willful’ if plaintiff proves that defendant knew that its
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`actions constituted infringement of plaintiff’s copyright or acted with reckless disregard of
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`plaintiff’s copyright.” (Damages Instr. (dkt. #254) 3.)
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`Defendant contends that the evidence does not support a finding of willfulness, but
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`makes its case by selectively directing the court to evidence in the record that: (1) Flora
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`was unaware of Sullivan’s role in creating the illustrations, having only worked with Joe
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`Silver; (2) once Flora was made aware of Sullivan’s claims of copyright infringement, it
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`removed her illustrations from Flora’s social media websites; and (3) Flora made efforts to
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`make “clean” versions of the videos, purportedly removing Sullivan’s illustrations. (Def.’s
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`Opening Br. (dkt. #296) 16-20.) On the other hand, as plaintiff points out, there was
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`substantial, additional evidence in the record that rather than create new art, Flora simply
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`decided to alter Sullivan’s copyrighted artwork by a “certain percentage,” reasoning
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`(incorrectly as it turns out) that it had already paid for the art and did not want to pay for
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`additional illustrations. (Pl.’s Opp’n (dkt. #313) 18-23.)
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`If the jury credited this latter evidence, which it reasonably could and obviously did,
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`then they also had a reasonable basis to find that: (1) Flora continued to infringe after
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`being made aware of Sullivan’s copyrights by making relatively minor changes to her
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`illustrations, including the use of her digital files to do so; and (2) such continued
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`infringement was at least in reckless disregard of her copyrighted work. As such, the court
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`concludes that defendant has failed to meet its burden of showing that a finding of
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`willfulness for purposes of awarding enhanced statutory damages was against the manifest
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`weight of the evidence.
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`iv. Due Process Challenge
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`Defendant’s alternative argument is that the jury’s award violates its substantive
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`due process rights. In advancing this argument, defendant points out that the ratio of
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`statutory damages to actual damages here is 25:1 ($3.6 million, as compared to $143,500),
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`which it argues runs contrary to the Supreme Court’s decision in BMW of North America v.
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`Gore, 517 U.S. 559 (1996), calling into substantial question the constitutionality of any
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`jury awards of punitive damages in common law tort cases that are at a ratio of more than
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`10:1 to the jury’s award of compensatory damages. 517 U.S. at 582. However, the United
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`States Supreme Court established the test for evaluating a due process challenge in the
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`context of statutory damages scheme almost one-hundred years ago in St. Louis, I. M. & S
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`Ry. Co. v. Williams, 251 U.S. 63 (1919), and has not departed from it since. The Williams
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`Court held that due process is violated “only where the penalty prescribed is so severe and
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`oppressive as to be wholly disproportioned to the offense and obviously unreasonable.” Id.
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`at 66-67. While the Seventh Circuit does not appear to have considered a due process
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`challenge to a statutory damages award for copyright infringement since BMW, other
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`federal circuit courts in recent opinions have continued to embrace the Williams standard.
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`See, e.g., Warner Bros. Entm’t, Inc. v. X One X Products, 840 F.3d 971, 977 (8th Cir. 2016);
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`Sony BMG Music Entm’t v. Tenenbaum, 719 F.3d 67, 71 (1st Cir. 2013); Zomba Enters., Inc.
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`v. Panorama Records, Inc., 491 F.3d 574, 587 (6th Cir. 2007).
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`Moreover, in reviewing an award of statutory damages for copyright infringement,
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`the Seventh Circuit has described the standard as “even more differential than an abuse of
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`discretion.” Broad. Music, Inc. v. Star Amusements, Inc., 44 F.3d 485, 487 (7th Cir. 1995);
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`see also Douglas v. Cunningham, 294 U.S. 207, 210 (1935) (explaining that Congress’s
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`purpose in enacting the statutory-damage provision in the 1909 Copyright Act was to
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`“take[] the matter out of the ordinary rule with respect to abuse of discretion.”).
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`Recognizing that its position urging substantially less deference lacks clear support in
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`current caselaw, defendant nevertheless urges the court to apply the three BMW
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`Case: 3:15-cv-00298-wmc Document #: 327 Filed: 06/29/18 Page 14 of 25
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`“guideposts.” As far as this court can discern, all federal circuit courts who have considered
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`this approach have rejected it. See Sony BMG, 719 F.3d at 70-71; Capitol Records, Inc. v.
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`Thomas Rasset, 692 F.3d 899, 907-908 (8th Cir. 2012); Zomba Enters., 491 F.3d at 587; see
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`also James Michael Leasing Co., LLC v. PACCAR Inc., No. 11-C-0747, 2013 WL 694764, at
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`*2 (E.D. Wis. 2013) (“[A]ll of the circuits to have addressed the question have held that
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`those guideposts do not apply to statutory penalties.”).
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`As the Eighth Circuit aptly explained, the concern about fair notice in the punitive
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`damages context “does not apply to statutory damages, because those damages are
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`identified and constrained by the authorizing statute.” Capitol Records, 692 F.3d at 907.
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`Moreover, at least two of the guideposts plainly have no application:
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`It makes no sense to consider the disparity between ‘actual
`harm’ and an award of statutory damages when statutory
`damages are designed precisely for instances where actual harm
`is difficult or impossible to calculate. Nor could a reviewing
`court consider the difference between an award of statutory
`damages and the “civil penalties authorized,” because statutory
`damages are the civil penalties authorized.
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`Id. at 907-09. Accordingly, this court rejects defendant’s invitation to review the jury’s
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`award of statutory damages for copyright infringement using a due process framework
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`developed by the Supreme Court for common law punitive damages awards.3
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`3 Even if the court were to entertain such a challenge, it is not clear that the appropriate comparison
`should be between the $143,500 compensatory damages award and the $3.6 million statutory
`damages award, since arguably the proper comparison should be the maximum statutory award for
`non-willful infringement of $990,000 and the $3.6 million award here, which would obviously fall
`well within the presumptive 1:10 ratio limit.
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`Case: 3:15-cv-00298-wmc Document #: 327 Filed: 06/29/18 Page 15 of 25
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`The issue remains, however, whether the $3.6 million statutory damages award is
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`“so severe and oppressive as to be wholly disproportioned to the offense and obviously
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`unreasonable.” Williams, 251 U.S. at 66-67. In addition to defendant’s attack that the
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`jury’s award far exceeds the single-digit ratio generally permitted since BMW for awards of
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`punitive damages, defendant also directs the court to two district court cases, which it
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`contends are comparable, and for which the statutory damages awards were significantly
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`less than that awarded here. (Def.’s Opening Br. (dkt. #296) 23.) First, in Spectrum Brands,
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`Inc. v. I&J Apparel, LLC, No. 16-CV-741-JDP, 2017 WL 2303577, *4 (W.D. Wis. May
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`26, 2017), this court awarded statutory damages in the amount of $10,000 per work in
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`the context of a default judgment. Of course, that case did not concern the review of a
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`jury award, which is entitled to great deference. See Deloughery, 422 F.3d at 619 (remittitur
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`standard: set aside if it is “monstrously excessive”); Mejia 650 F.3d at 633 (Rule 59
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`standard: “against the manifest weight of the evidence”); Williams, 251 U.S. at 66-67 (due
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`process standard: “so severe and oppressive”).
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`Moreover, in Spectrum Brands, the plaintiff sought an award of $30,000 per work
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`(the statutory cap for non-willful infringement), significantly less than what plaintiff
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`requested here. Spectrum Brands, 2017 WL 2303577, at*4. The court also awarded
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`significant damages for trademark infringement of $200,000, emphasizing that although
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`certain factors weigh in favor of awarding a similar amount for copyright infringement,
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`“granting two separate damages awards under the same analytical framework would result
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`in dual recovery.” Id. Finally, in considering the remedial purpose of the award, this court
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`explained that “there is no information that would suggest that [the defendant] I&J
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`Case: 3:15-cv-00298-wmc Document #: 327 Filed: 06/29/18 Page 16 of 25
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`Apparel is a large-scale operation that would warrant damages of nearly half a million
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`dollars as Spectrum Brands requests.” Id. All of these points of distinction render Spectrum
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`Brands of little guidance here.
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`The second case cited by defendant, Kinsey v. Jambow, Ltd., 76 F. Supp. 3d 708
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`(N.D. Ill. 2014), is similarly unhelpful. In Kinsey, the statutory damages award was $7,500
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`per work, for a total award of $22,500, and was also awarded in the default judgment
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`context. Id. at 713. Moreover, the district judge faulted plaintiff for its failure to put forth
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`evidence to support a default judgment award. Id. at 713. As a result, the court’s analysis
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`in Kinsey is limited to its conclusion that “a $7,500 award of statutory damages for each
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`work infringed is well within the statutory range and should be sufficient to deter future
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`violations.” Id.
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`In response to defendant’s citation to these two decisions, plaintiff also directs the
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`court to a number of opinions that uphold jury awards for substantial statutory damages
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`for copyright infringement, ranging from $1 million to $31.68 million. (Pl.’s Opp’n (dkt.
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`#313) 23-24.) In its reply, defendant attempts to distinguish these cases, either on the
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`basis that: (1) the works implicated in the awards were significantly more than the 11 (or
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`even 33, assuming all were infringed, contrary to defendant’s position), and thus, the per
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`work award was substantially less than that $110,000 per work award here; or (2) the
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`defendants’ behavior was more egregious than that at issue here. Both are fair points.
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`Indeed, the statutory award here appears to fall on the high end for copyright
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`infringement claims given all of the facts of record. Still, defendant fails to develop any
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`compelling argument why the $3.6 million award (or approximately $110,000 per work
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`Case: 3:15-cv-00298-wmc Document #: 327 Filed: 06/29/18 Page 17 of 25
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`award) is so oppressive and severe as to violate its due process rights. While the award
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`may result in a windfall to this plaintiff, as courts have repeatedly recognized, Congress
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`obviously has in mind larger goals than just remuneration. Chi-Boy Music v. Charlie Club,
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`Inc., 930 F.2d 1224, 1229 (7th Cir. 1991) (listing factors to consider in setting statutory
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`damages award). Likely as a result, it is hard to find any reasonably contemporary case
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`ordering remittitur of a jury’s statutory damages award in the copyright setting except in
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`file-sharing (peer to peer) cases where the defendant is an individual, rather than a
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`commercial enterprise, much less a large commercial enterprise like the defendant that a
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`jury found willfully disregarded plaintiff’s copyright.
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`B. Unjust Enrichment Damages
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`As described above, the jury also awarded separate damages for plaintiff’s unjust
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`enrichment claim. The jury was instructed that:
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`Unjust enrichment damages cannot be awarded for any injury
`caused by copyright infringement occurring within the United
`States. The measure of damages under unjust enrichment is
`the value of the benefit conferred on defendant. The value of
`the benefit may be calculated based on the prevailing price of
`plaintiff’s services as long as those services benefited the
`defendant.
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`(Damages Instr. (dkt. #254) 3-4.)
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`In its motion, defendant cobbles together an argument seeking a remittitur between
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`$9,000 to $60,000 based on a per video damages award of $20,000. Defendant attacks
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`the jury’s award for two core reasons: (1) plaintiff failed to put forth evidence of a benefit
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`to Flora; and (2) plaintiff only introduced evidenc