How can a party determine if your expert’s opinion will adequately support your position?  In the recent case of Dash v. Mayweather, 731 F.3d 303 (4th Cir. 2013), the Court addressed this issue when it considered the adequacy of an expert’s opinion on damages.
In that case, Anthony Lawrence Dash filed a lawsuit against Floyd Mayweather and the World Wrestling Entertainment (WWE) claiming that Mayweather and WWE had committed copyright infringement after using Dash’s beat track without his permission.  All parties agreed that the use of his song did not increase the revenue after it was played at Wrestlemania XXIV and the August 24, 2009 TV show, RAW.  Dash v. Mayweather, 731 F.3d 303, 308 (4th Cir. 2013).  In light of that, the parties filed a joint motion requesting that the Court make a determination with respect to damages.
Dash used an expert who determined that his damages were worth over one million dollars. The Court dismissed Dash’s case because it found the expert’s analysis to be too speculative.  In addition, the Court did not agree with the expert’s use of other artists, such as Fuel, Red Hot Chili Peppers and Snoop Dogg, who have licenses with WWE for the valuation of the license fees in Dash’s case.  The Court said that Dash needed to compare himself to other comparable artists. Since he had nothing to substantiate that there were comparable artists to which he could be compared, his claim failed. He never made a profit from the track used; he could not use establish the value of his license fees.
Section 504(b) of the Copyright Act allows a copyright owner to obtain the owner’s actual damages and the infringer’s profits attributable to the infringed work.  However, it is necessary to offer sufficient evidence to meet the standard of proof.  The copyright owner has to show a reasonable nexus between the infringement and the defendant’s attributable profits.
On this basis, the Dash Court ruled that he needed to show more than just the use of the copyrighted material.  Since he could not demonstrate damages in a manner that satisfied his burden of proof, his claim was not successful.

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