## Facts

- Jack Mackie created “The Dance Steps,” including “The Tango,” a copyrighted bronze dance-step artwork embedded in a Seattle sidewalk; the work displayed a copyright notice, but the copyright was not registered at the time of infringement.
- The Seattle Symphony hired Bonnie Rieser to design a season brochure; the Pops-series page used altered photographic images of “The Tango” in a collage and omitted Mackie’s copyright notice.
- The Symphony did not obtain permission; the parties did not dispute that the brochure use infringed Mackie’s copyright.
- Because the copyright was unregistered at the time, Mackie could not recover statutory damages or attorney’s fees and pursued actual damages and the Symphony’s indirect profits under 17 U.S.C. § 504(b).
- Mackie sought indirect profits by attributing Pops-series revenues (e.g., ticket and subscription sales) to the infringing brochure.
- Mackie’s expert conceded it was impossible to determine how much, if any, Pops revenues resulted from the infringing artwork rather than other factors.
- Mackie conceded the infringement did not diminish the market value of “The Tango” and that he had never previously charged a royalty for reproduction.
- The district court granted summary judgment to the Symphony on indirect profits as too speculative, but awarded Mackie $1,000 in actual damages (as a reasonable royalty) plus costs, jointly and severally against Rieser and the Symphony.

## Issues

1. Under 17 U.S.C. § 504(b), what evidence of causation must a copyright plaintiff produce to recover the defendant’s indirect profits and survive summary judgment?
2. Did Mackie produce non-speculative evidence that the Symphony’s Pops-series revenues were at least partially caused by the infringing brochure use?
3. Did the district court err in awarding $1,000 in actual damages and refusing to increase damages based on Mackie’s subjective dissatisfaction with the use?

## Decision

- The Ninth Circuit affirmed summary judgment for the Symphony on Mackie’s § 504(b) indirect profits claim.
- The court held that a plaintiff seeking indirect profits must present evidence creating a triable issue that the infringement at least partially caused the profits claimed.
- The court concluded Mackie’s proof of a link between the brochure image and Symphony revenues was speculative, particularly given his expert’s inability to attribute any revenue to the infringement.
- The court affirmed the $1,000 actual-damages award as a reasonable royalty and rejected damages based on subjective offense absent economic harm.

## Legal Principles

- Under 17 U.S.C. § 504(b), a plaintiff claiming indirect profits must first show a non-speculative causal nexus between the infringement and an identifiable, reasonably related revenue stream; only then does the burden shift to the defendant on deductions and apportionment.
- “Gross revenue” for § 504(b) purposes must be reasonably related to the infringement, not the defendant’s overall revenues from a multi-factor enterprise.
- Speculation and conclusory assertions about increased revenues are insufficient to create a triable issue on causation for indirect profits.
- Actual damages may be measured by a reasonable royalty (hypothetical license fee) when evidence of lost market value or established licensing rates is lacking.
- Copyright damages compensate economic injury; subjective displeasure with how a work is used, without economic harm, does not support enhanced damages.

## Conclusion

The Ninth Circuit required concrete, non-speculative evidence that an infringement contributed to the defendant’s identified revenues before indirect profits are recoverable under § 504(b), and it upheld a modest reasonable-royalty award where the plaintiff showed no market-value loss or established licensing practice.


Mackie v. Rieser, 296 F.3d 909 (9th Cir. 2002)