It was big news locally when Tyler Perry (best known of course for playing the Starfleet Academy commandant in Star Trek) prevailed in the copyright infringement case brought against him in Marshall recently over the authorship of his movie Diary of a Mad Black Woman. Today Judge Davis issued a 25 page opinion denying the plaintiff's motion for new trial and denying in part the bill of costs submitted by the prevailing defendant.
At trial, Judge Davis observed, the main issues were whether Perry had access to plaintiff Donna West’s play Fantasy of a Black Woman such that he copied it, whether he copied it, and whether the two works are so similar that the jury could find he had copied it even without proof of access. The relevant standard, he noted, is set forth in Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 367 (5th Cir. 2004). (No, seriously, that's really the name of the seminal case).
Judge Davis began by identifying numerous grounds asserted in the motion for new trial that West did not preserve either through objection at trial or otherwise, including improper appeals to emotions, Defendants' alleged misrepresenting of a witness's testimony, prejudice by unfair surprise created by Defendants’ argument that Perry first came to Dallas in 1999, that Defendants misrepresented the existence of the original Diary of a Mad Black Woman script, evidence of Perry’s post-1998 work, the Court’s ruling regarding the admissibility of West’s copyright registration that is reflected in the Court’s ruling on West’s motion in limine, and that the charge misled the jury. On the copyright registration issue, Judge Davis noted that he never excluded the registration - he simply held that if it were offered, it was coming in in its entirety. But Plaintiff never offered it in any form, nor did she make an offer of proof of the registration, thus any claim of error was waived.
On issues that were preserved via a timely objection, the plaintiff didn't fare much better. First, she complained that the defendant made a prohibited "golden rule" argument to the jury. Judge Davis noted that as the statement pertained to liability and not damages, it was not prohibited as such - but he sustained the objection anyway. As the plaintiff did not then request a curative instruction, it waived any complaint (this is often referred to as "failing to pursue an adverse ruling.") Next up was a complaint about a statement in closing statement, which Judge Davis held did not warrant a new trial, and objections to testimony by the defendant's expert, as to which Judge Davis had the same conclusion. Next was a statement by Perry during his testimony which Judge Davis instructed the jury to disregard. In light of the instruction (which was not objected to, and thus only plain error review applied) and the minor probative value of the statement, Judge Davis held that any error was harmless. (Ed. note: It's not that it is difficult to preserve error on our various Baylor Law School - educated judges, like Judge Davis. It's just that they know when you don't do it, having been educated at a school where the exterior frieze has an engraved inscription "Error, error, shalt thou pursue." Or maybe I'm just thinking about the inside of my forehead after going there ...). See QPSX v. Nortel (no offer of proof on excluded expert testimony).
Finally, plaintiff asserted objections to the Court's charge, and after review, Judge Davis concluded that the charge, as submitted, was proper (and on some of the objections, again - you got it - plaintiff did not preserve error). Finally, Judge Davis rejected the plaintiff's claim that the jury's verdict was against the great weight of the evidence, spending several pages to detail the evidence and the applicable standards, before concluding that the jury's verdict should be upheld.
On the bill of costs issue (not one of Judge Davis' favorite motions, as local practitioners know), one useful data point is that he excluded costs for videotaped depositions, citing Fifth Circuit precedent (which is admittedly contrary to some other circuits on this point). The interesting part is that on October 13, 2008, as part of a package of cleanup amendments, Congress amended the court costs statute, 28 USC 1920 (see Pub. L. 110-406) to allow recovery of "electronically recorded transcripts." I studied this legislation recently trying to figure out whether this section covered videotaped depositions as well as electronic copies, i.e. ascii disks or CD copies of transcripts, and the legislative history is not helpful, so it is useful (or at least interesting - the adjective depends on which side of the argument you are on) to have an opinion from Judge Davis that postdates the statute concluding that it does not. Of course the opinion also reflects that the defendant specifically did not seek costs for video depositions, and there's no indication that anyone brought the new statute to the Court's attention (at different places the order quotes the prior and the current language), so the issue may still be virgin territory, legally speaking.
In any event, the order provides a detailed analysis of specifically which costs are recoverable for court reporter fees and which are not, spanning depositions, pretrial, and trial. In the most crucial part of the opinion for practitioners, Judge Davis notes that "[t]he rates of $0.15 per page for black and white copies and $0.99 per page for color copies are not exorbitant on their face." He also sent the parties back to confer on the issue of recoverability of costs for exhibits, demonstratives, and duplicates, and rejected the plaintiff's claim that the costs should be reduced as a result of her inability to pay due to a medical condition. Finally, in likely the most crucial part of the opinion for the Court, Judge Davis concluded by holding that "The Court ORDERS the parties to meet and confer as detailed above and are urged to work diligently to resolve these matters without further Court intervention." (Emphasis not in original, surely due to an oversight).
