(CN) – Floyd Mayweather Jr. beat back another challenge with the 4th Circuit dismissing a lawsuit claiming the boxer used a song as entrance music in 2008 without the writer’s permission.
Anthony Lawrence Dash sued Mayweather, World Wrestling Entertainment and Philthy Rich Records for $150,000 in 2010, claiming the undefeated welterweight used his “Tony Gunz Beat” for entrance music during an appearance at Wrestlemania XXIV in March 2008.
Mayweather went on to defeat a wrestler named “Big Show” during the pay-per-view event.
While the choice of entrance music was not part of the contract between Mayweather and the WWE, according to court documents, prior to the event the promoter suggested the use of a song by rapper 50 Cent as the boxer entered the ring.
“However, the night before Wrestlemania XXIV, one of Mayweather’s associates communicated to the WWE that Mayweather would be entering to a different song, entitled ‘Yep,'” U.S. District Judge Mark Davis, sitting by designation, wrote for the three-judge panel. “Mayweather’s manager provided the WWE with a CD containing the song and represented that Mayweather owned all rights to the song and was granting the WWE right to use it in connection with his appearance.”
According to the ruling, the song was used not only during Wrestlemania XXIV, but also during Mayweather’s appearance on a weekly WWE program called “Raw Guest Host” more than a year later.
Dash filed his suit in April 2010, but the federal appeals court in Richmond, Va., appeared to believe the songwriter’s claims were problematic from the start.
“Although Dash alleged that he created TGB in 2005, he did not file a copyright application for the beat with the United States Copyright Office until sometime in 2009,” Davis wrote. “Dash then received a Certificate of Registration providing an effective date of registration for TGB of October 13, 2009. Dash claims that appellees’ use of ‘Yep’ in connection with both of Mayweather’s WWE appearances infringed his copyright in TGB. Therefore, the claimed infringement is alleged to have occurred after Dash composed TGB, but before his copyright registration became effective.”
U.S. District Judge Joseph Anderson Jr., in Columbia, S.C., ruled that because Dash had not registered his copyright prior to the alleged infringement, statutory damages were not available to him.
Anderson then bifurcated the proceedings, separating the questions of liability and damages. Shortly thereafter, Dash submitted the findings of an intellectual property expert, Michael Einhorn, who concluded that $541,500 of WWE’s net profit from Wrestlemania XXIV was attributable to its use of “Tony Gunz Beat,” and that, combined with Mayweather’s gain from the infringing use of the song, Dash should receive no less than $1 million from the defendants.
Dash also raised the argument that if the court didn’t accept Einhorn’s findings, he still should be entitled to a licensing fee of $3,000 for the use of the song.
But Anderson rejected Dash’s claims, concluding there was “no conceivable connection” between the alleged infringement and the claimed revenues, and that the defendants had successfully offered evidence – namely the lack of any reported income on Dash’s tax returns from his musical composition – that the song did not have any market value.
Dash moved for reconsideration, which Anderson denied. He then appealed the case to the 4th Circuit, where his argument similarly fell flat.
Not only did the Einhorn report fail to show that Dash was ever paid for his prior works, it also failed to establish that such works predated the alleged infringement, the panel ruled.
“Without any evidence that Dash previously sold or otherwise garnered some market value for the use of his music, any claim that he would have earned a licensing fee, based solely on his history as an artist, is too speculative to preclude summary judgment on his actual damage claim,” Davis wrote.
Further, Dash’s evidence on licensing fees was also speculative because he based his alleged loss on the licensing fees paid for works that were not comparable to Tony Gunz Beat,” according to the court.
The panel took a similarly dim view of Dash’s request for “profit damages,” saying the songwriter rested his case on revenues derived from products that peripherally include infringing content.
“This is insufficient,” Davis wrote. “Because Dash provided the factfinder with no reasonable basis for concluding that the infringement contributed to appellees’ profits, the district court properly granted appellees summary judgment on Dash’s claim for profit damages.”
Davis was joined in his opinion by Circuit Judges Stephanie Thacker and Andre Davis.
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