1. Brian Andreas v. Volkswagen of America, Inc.

2. In 1994 Andreas, an artist, created an image that included the words, “most people don’t know that there are angels whose only job is to make sure you don’t get too comfortable & fall asleep & miss your life. In 1999, Volkswagen’s advertising agency included substantially similar language tot that in Andrea’s image in an Audi TT television commercial. Andreas brought suit against the advertising agency and Volkswagen for copyright infringement. Case Overview

3. The Arguments Volkswagen’s Arguments: The profit during this period was attributable to factors other than the infringing language. This evidence included two other commercials during that period, other aspects of the infringing commercial, customer loyalty and brand recognition. Andreas does not have the right to all the profits made during the time the infringing commercial aired. Andreas’ Arguments: By using his language in the Audi tt commercial the advertising agency conducted copy right infringement and therefore he should get all the profits of the advertising agency for that commercial and all the profits of the Audi tt’s sold during the five month period the commercial aired.

4. Jury The jury awarded Andreas 10% ($570.000) in profits from Volkswagen. (During the five month period Volkswagen earned $5.7 million on the sales of 5146 Audi tt’s. The jury also awarded Andreas profits form the advertising agency in the amount of $280.000. (During that five month period the agency earned $546.821 in profits and its fees from Volkswagen were based on employee hours. However the agency was unable to show how many hours were spent working on the infringement commercial as opposed to the other two commercials. Therefore the jury awarded one half is profits as damages to Andreas)

5. District Court decision The district court granted Volkswagen’s motion for judgment as a matter of law because it found that Andreas failed to prove the causal connection between the infringement and the car sales. Thereby reversing the jury’s award of profits.

6. Appeal to Eighth Circuit Both Andreas and the advertising agency appealed. Andreas argued that the district court erred when it granted JAML to Volkswagen, reversing the jury’s award of profits. The appellate court agreed and determined that Andreas showed a sufficient nexus between the infringing commercial and the profitable introduction of the TT Coupe using circumstantial evidence. It reversed the district court’s grant and reinstated the jury’s verdict. The agency argued that the district court erred when it awarded Andreas one half its profits, because the infringing commercial was only one of the three commercials it produced for Audi TT. The damages should be limited to one-third. The Eighth Circuit disagreed because the agency was not able to show how many hours they spent on the different commercials.

7. The court proceedings can be found here: http://www.ca8.uscourts.gov/opndir/03/07/022309P.pdf

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