Andreas v. Volkswagen of America, Inc.

In 1999, McKinney and Silver, Inc. (M & S) (defendant) produced a television commercial for Volkswagen of America, Inc. (Audi) (defendant) to introduce and promote the Audi TT coupe (TT). The commercial aired for several months. Believing the commercial to infringe on protected content from his copyrighted works, artist Brian Andreas (plaintiff) brought a copyright infringement action against M & S and Audi. A jury found for Andreas and awarded him $965,000 in damages. The award included $115,000 in actual damages, as well as $570,000 from Audi and $280,000 from M & S to account for profits earned as a result of the infringement. The $570,000 from Audi represented 10 percent of the profits from sales of the TT while the commercial aired. In support of his claim of profits, Andreas provided evidence that Audi beat sales expectations during the airing period and that the commercial was popular and produced high customer recall. The parties did not dispute the award of actual damages, but Audi and M & S filed a joint motion for judgment as a matter of law to vacate the additional awards. The district court granted Audi’s motion and vacated the award of $570,000, but denied M & S’s motion for remittitur and upheld the judgment of $280,000 against it. Andreas appealed the court’s grant of judgment as a matter of law for Audi, and M & S cross-appealed the rejection of its own motion.