‘Infected Jury’|Requires a New Trial


     LAS VEGAS (CN) – A new trial is needed because an “infected jury” awarded $2.2 million to a sculptor who sued the owner of a Hoover Dam cafe for royalties, a federal judge ruled.
     A jury in May decided that High Scaler Café owner Bert Hansen owes Steven Liguori and Bruno Lioguori Turquoise Trading $1,350,000 in damages and $830,573 in interest and costs for copyright infringement and royalties for the popular High Scaler sculpture next to Hansen’s High Scaler Café at the Hoover Dam.
     The jury award was $1.2 million for breach of contract and $150,000 in statutory damages, plus interest and costs. But U.S. Magistrate Judge George Foley Jr. on Friday said the jury incorrectly factored in the sale of food items and bottled water when awarding damages.
     When a jury award is “excessive,” a court can order a new trial or reduce the award. Courts usually reduce the award, unless a “prejudicial error has infected the jury’s entire consideration” of a plaintiff’s loss and a new trial is needed, Foley ruled.
     Here, “The jury’s award of damages for breach of contract was based on a clear error regarding the scope of the retail licensing agreement. This error infected the jury’s entire consideration of the royalties that plaintiffs were entitled to recover,” Foley wrote.
     The jury verdict included sales of food and water not contained in the agreement, which applied only to souvenirs. Hansen filed a motion for judgment as a matter of law, a new trial, or a reduction of the award.
     Foley granted a new trial on Liguori’s claims of breach of contract and copyright infringement, denied his motion for judgment as a matter of law, and opted for a new trial instead of granting a reduced award via remittitur.
     In his April 2011 lawsuit , Liguori claimed Hansen and the Snacketeria had commissioned him to create a “large-scale sculpture of a worker on Hoover Dam,” which Liguori named the “High Scaler.” The sculpture is near the gift shop and café that Hansen owns and operates at Hoover Dam.
     The Snacketeria was renamed the High Scaler Café.
     In 1995 Liguori created a statue based on Hoover Dam worker and high-scaler Joe Kine in honor of the Hoover Dam’s 60th anniversary. Liguori and Hansen agreed to create the High Scaler monument near the High Scaler Café in 1998.
     Liguori said in his lawsuit that most of his compensation was to come from a licensing agreement with Hansen: In exchange for the right to manufacture and sell souvenirs based on Liguori’s work, Hansen agreed to pay a 17 percent royalty on the licensed products.
     Liguori copyrighted his sketches and other works about Hoover Dam and the monument. He claimed that Hansen “exploited” the monument to “great commercial advantage” by manufacturing and selling a “significant volume of souvenirs that that utilize” his work.
     Hansen used likenesses of the sculpture in ways that “go far beyond the licensed purposes,” including in marketing materials, the menu, signs, and other items for the High Scaler Café, Liguori said.
     Although Hansen and his business “have recognized a very substantial benefit” from Liguori’s work, the sculptor said Hansen and his company “utterly refused to fulfill their obligations under the license agreement.”He sued for copyright infringement, breach of contract and bad faith. He sought injunctive relief, impoundment of infringing items, compensatory, statutory and punitive damages.

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