We have previously written about social media posts and advertisements being used as evidence in a variety of legal cases (most recently, a post relating to emojis). A federal court in Pennsylvania recently used two social media advertisements—from a source the court could not identify—as evidence to support a finding of “willfulness” and to award 33% in enhanced damages. (J&J Sports Productions, Inc. v. Ramsey, Civ. No. 17-1942 (E.D. Pa. Sept. 27, 2017) (2017 WL 4287200).)
The case began in May of 2015, when J&J Sports Productions owned the rights to distribute the “Fight of the Century” on pay-per-view television. J&J Sports would enter into licensing agreements with commercial establishments (such as sports bars) that wished to show the fight to their patrons, and would encrypt the transmission so that it was only available to paying customers. The license fee would vary based upon the size of the establishment so that, for example, an establishment wishing to exhibit the fight to a room of 200 to 300 people would owe J&J Sports a license fee of $9,000.
In Pennsylvania, there was a banquet hall named Treasures Banquet Hall, owned by Treasures 5548, LLC, which company was allegedly owned by the defendant. The court reviewed a social media advertisement of the “Fight of the Century” being shown at Treasures Banquet Hall, with music and food, for a $20 fee per person. The court also reviewed an advertisement by “JoeBread” on social media for the fight being shown “on 5 projector screens” at Treasures Banquet Hall with free chicken and fish platters and free martinis from 7-9. These advertisements were noticed by J&J Sports, which sent two private investigators to Treasures Banquet Hall on the date of the fight. The investigators reported that they paid the cover charge of $20 to enter the facility, which had one television and 5 projection screens showing the boxing match. One of the investigators estimated that approximately 200 to 253 people were in attendance.
J&J Sports brought a lawsuit for piracy of the broadcast under the U.S. federal telecommunications laws (47 U.S.C. § 605). The defendant did not appear for the court hearing.
Under the telecommunications law at issue, J&J could elect to receive statutory damages or actual damages. Statutory damages are a minimum of $1,000 and a maximum of $10,000 per violation. The court evaluated the amount that Treasures Banquet Hall would have to pay for the license and the profits to the extent attributable to the violation. In this case, the court awarded as statutory damages to J&J Sports the $9,000 it would charge for licensing a facility of this size.
With respect to enhanced damages, the court reviewed several factors, including “whether the defendant advertised its intent to broadcast the event.” The court noted that J&J Sports did not provide the court with any advertising by Treasures Banquet Hall relating to the fight. Nevertheless, the court stated:
We received social media advertising by a JoeBread. We have no idea of who he is or his relationship to Defendants. We also have no evidence of J&J’s actual damages.
On balance, we find willfulness from the advertising which we cannot discount simply because the social media came from the an unknown “JoeBread.” Treasures Banquet Hall is prominently mentioned in the advertisement. The undisputed evidence is over 200 people attended this exhibition. But the other factors do not warrant a substantial premium of the statutory damages. Our evaluation of the adduced evidence leads us to award a 33% enhanced damages premium.
The court also awarded reasonable attorney’s fees and costs, bringing the $9,000 damage award to a total of $20,674.11.
Although this case was unusual because the defendant did not appear at the hearing, this case serves as a reminder that companies should monitor social media to make sure that their company names and brands are being used appropriately.