Tuesday, July 30, 2013

11th Circuit Copyright and Trademark Jury Instructions

Thanks to Dineen Wasylik for pointing out the Eleventh Circuit's new pattern jury instructions to me.  As Dineen writes, these new instructions include forms for both Copyright and Trademark trials.   The instructions are available here.

On first blush, these instructions appear relatively comprehensive for copyright matters, with one noticeable omission.  Namely, how the jury should be instructed with regards to establishing a plaintiff's profits attributable to the defendant's infringement.  While the statute reads:
In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
17 USC 504(b), it appears left for future decisions how the Eleventh Circuit will apply this law.

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