Flashback Holdings Pty Ltd v Showtime DVD Holdings Pty Ltd (No 6) [2010] FCA 694

Flashback Holdings Pty Ltd v Showtime DVD Holdings Pty Ltd (No 6) [2010] FCA 694

The prior judgment conclusively established liability against Mr Leslie but left him free to contest quantum. Flashback established that, but for Showtime's infringing sale, it would have sold 27,840 DVDs to ALDI and would have earned a profit, but the damages were reduced to $40,000 to reflect the possibility that ALDI would have negotiated a lower price. Flashback failed to prove the claimed further lost profits for the period December 2008 to May 2010 because the invoices did not support sales of 90,000 children's DVDs and, although lost revenue on other product lines was probably shown, Flashback gave no evidence of the profit margin needed to calculate lost profits.

Jurisdiction
Australia
Judgment Date
02 July 2010
Procedural Posture
Copyright Infringement Proceeding by Exclusive Licensee Seeking Relief for Infringement / Assessment of Damages After Defences of Showtime and Mr Leslie Were Struck Out and Judgment Entered Against Them; Flashback Elected Damages and Did Not Seek an Account of Profits
Outcome
Judgment to be given in favour of Flashback against Mr Leslie in the sum of $40,000 together with interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth); injunctive relief appropriate; no additional declaratory relief; parties to bring in short minutes of order within 14 days.
Legal Topics
['copyright Infringement by Sale and Authorisation' 'exclusive Licensee Rights' 'assessment of Damages Under S 115(2) of the Copyright Act 1968 (cth)' 'lost Profits' 'default Judgment and Judgment Damages to Be Assessed' 'election Between Damages and Account of Profits']
['copyright' 'civil Procedure' 'damages'] ['copyright Infringement by Sale and Authorisation' 'exclusive Licensee Rights' 'assessment of Damages Under S 115(2) of the Copyright Act 1968 (cth)' 'lost Profits' 'default Judgment and Judgment Damages to Be Assessed' 'election Between Damages and Account of Profits']

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Procedural Posture

Copyright Infringement Proceeding by Exclusive Licensee Seeking Relief for Infringement / Assessment of Damages After Defences of Showtime and Mr Leslie Were Struck Out and Judgment Entered Against Them; Flashback Elected Damages and Did Not Seek an Account of Profits

Legal Issues

  1. 1 ['Whether the prior self-executing order and judgment precluded Mr Leslie from being heard on the assessment of damages' "Whether Mr Leslie could contest Flashback's exclusive licence or rely on s 115(3) of the Copyright Act 1968 (Cth) at the damages hearing" 'How damages for copyright infringement should be assessed after Flashback elected damages rather than an account of profits' "Whether Flashback proved lost profits from the sale of 27,840 children's DVDs to ALDI" 'Whether Flashback proved further lost profits from alleged lost future sales to ALDI between December 2008 and May 2010']

Ratio Decidendi

The prior judgment conclusively established liability against Mr Leslie but left him free to contest quantum. Flashback established that, but for Showtime's infringing sale, it would have sold 27,840 DVDs to ALDI and would have earned a profit, but the damages were reduced to $40,000 to reflect the possibility that ALDI would have negotiated a lower price. Flashback failed to prove the claimed further lost profits for the period December 2008 to May 2010 because the invoices did not support sales of 90,000 children's DVDs and, although lost revenue on other product lines was probably shown, Flashback gave no evidence of the profit margin needed to calculate lost profits.

Court Disposition

Judgment to be given in favour of Flashback against Mr Leslie in the sum of $40,000 together with interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth); injunctive relief appropriate; no additional declaratory relief; parties to bring in short minutes of order within 14 days.

Orders

  • ['The parties bring in short minutes of order reflecting the reasons for judgment within 14 days.']