## Facts

- Brian Andreas created and copyrighted a combined drawing and short text titled “Angels of Mercy,” containing the phrase “not … get too comfortable fall asleep miss your life.”
- Volkswagen of America, Inc., doing business as Audi of America, Inc. (Audi), marketed the Audi TT coupe in the United States through television advertising created by its agency, McKinney & Silver, Inc. (M&S).
- One Audi commercial (“Wake Up”) used a voice-over stating, in part, that something was “screaming at me not to get too comfortable and fall asleep and miss my life.”
- Andreas sued Audi and M&S for copyright infringement, alleging the commercial’s voice-over copied protectable expression from his text.
- At trial, the court limited Andreas’s infringer’s-profits evidence to gross revenues and profits from Audi TT sales during the commercial’s airtime, excluding revenues from other Audi models.
- The jury found infringement and awarded $965,000: $115,000 in actual damages, $570,000 in Audi profits (a percentage of TT profits during the ad campaign), and $280,000 in M&S profits.
- Post-trial, the district court granted Audi judgment as a matter of law (JMOL) vacating the $570,000 profits award for lack of sufficient proof of attribution, but denied M&S’s request to reduce (remit) the $280,000 award.
- Andreas appealed the JMOL for Audi; M&S cross-appealed the denial of remittitur.

## Issues

1. Whether the evidence permitted a reasonable jury to find a causal connection between the infringing commercial and Audi’s profits from TT sales sufficient to sustain a § 504(b) profits award, making JMOL improper.
2. Whether the district court abused its discretion by refusing to remit the jury’s award of M&S’s profits as excessive.

## Decision

- The Eighth Circuit reversed the JMOL in Audi’s favor and reinstated the $570,000 jury award of Audi’s profits.
- The court held that Andreas presented enough evidence for a reasonable jury to link the infringing advertisement to TT sales during the campaign period.
- The court concluded that, once Andreas showed gross revenues tied to the advertised product and a plausible causal nexus, § 504(b) shifted to Audi the burden to prove apportionment to non-infringing factors; the jury could reasonably allocate a percentage of profits to the infringement.
- The court affirmed the denial of remittitur for M&S, holding the $280,000 profits award was supported by the record and not so excessive as to require reduction.

## Legal Principles

- Under 17 U.S.C. § 504(b), a copyright plaintiff seeking infringer’s profits must prove the infringer’s gross revenue connected to the infringement and present evidence supporting a causal nexus between the infringement and the claimed revenues.
- After the plaintiff’s threshold showing, the infringer bears the burden to prove deductible expenses and to apportion profits to factors other than the copyrighted work.
- A jury may rely on circumstantial evidence to attribute a reasonable portion of product profits to an infringing advertisement; courts may not overturn that allocation through Rule 50 merely because attribution involves marketing inferences.
- JMOL is appropriate only when, viewing the evidence in the nonmovant’s favor, no reasonable jury could reach the verdict; courts may not weigh evidence or substitute their view for the jury’s.
- Remittitur is warranted only when an award is grossly excessive or outside the range a reasonable jury could select; review is for abuse of discretion.

## Conclusion

The court held that the jury had a sufficient evidentiary basis to award a portion of Audi’s TT profits as attributable to an infringing commercial under § 504(b) and that Audi, not the plaintiff, bore the burden of apportioning profits to non-infringing causes; it also upheld the agency profits award as not excessive.


Andreas v. Volkswagen of Am., Inc., 336 F.3d 789 (8th Cir. 2003)