The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.
Plaintiff moves for reconsideration of this Court's order*fn1 granting defendants' motion in limine to exclude the testimony and opinions of plaintiff's experts, but only insofar as that order excluded the testimony of Dr. Larry Chiagouris and Raymond Meier. In the alternative, plaintiff seeks an order (a) finding that plaintiff's offer of evidence of defendant Coors Brewing Company's gross receipts from the sale of Coors Light Beer in the United States in 2002 will meet plaintiff's burden of proof of damages under 17 U.S.C. § 501, (b) taking judicial notice of certain facts, and (c) permitting plaintiff to publish to the jury hard copies of certain photographs, in addition to exhibiting them electronically, after they are received in evidence. The motion is supported by an affidavit, exhibits and a 22-page memorandum of law.
A. The Motion for Reconsideration
As an initial matter, the motion for reconsideration fails to comply with the rules of this Court. S.D.N.Y. CIV. R. 6.3 precludes the submission, absent leave of court, of affidavits in support of motions for reconsideration. It does so for a perfectly sensible reason. A motion for reconsideration is designed to bring to the Court's attention evidence and authorities that were before the Court on the original motion but overlooked by it.*fn2 It is not an occasion for making arguments and offering evidence that could have been, but was not, adduced on the original motion.*fn3 Accordingly, to the extent that the affidavit and exhibits are offered in support of reconsideration of the previous order, the Court declines to consider them.
Insofar as plaintiff seeks reconsideration of so much of the order as excluded Mr. Meier as a witness, his memorandum argues only that his testimony would be relevant on the issue of wilfulness. He does not even address the basis for the Court's ruling, viz. that Mr. Meier's testimony would not be helpful to the trier of fact. He therefore has failed to demonstrate that the Court overlooked anything in excluding this testimony.
Finally, plaintiff seeks reconsideration of so much of the order as excluded Dr. Chiagouris' testimony. He maintains that the Court erred in concluding that Dr. Chiagouris is not qualified to offer the opinions that plaintiff would adduce from him. He argues also that the Court's ruling impermissibly shifts to plaintiff the burden to show what revenue received by defendant Coors was received from sources other than the allegedly infringing billboard. Ostensibly in support of the latter argument, he maintains that defendants admitted that there were 250 billboards and that any lack of data supporting Dr. Chiagouris' opinions is attributable to defendants' refusal to provide discovery. The Court begins with the contention that the exclusion of Dr. Chiagouris' testimony impermissibly shifts the burden to the plaintiff, which is the only new point raised by plaintiff.
a. Alleged Shifting of Burden of Proof
Section 504(b) of the Copyright Act of 1976*fn4 provides that a successful copyright infringement plaintiff is entitled to recover actual damages "and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages." It goes on to say that "[i]n 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." Thus, a plaintiff seeking to recover an infringer's profits generally makes out a prima facie case by proof "of the infringer's gross revenue." It is up to the infringer to demonstrate that all or part of that gross revenue consists of "deductible expenses and . . . elements of profit attributable to factors other than the copyrighted work."
The applicability of this principle where, as here, the alleged infringement includes the use of a copyrighted work in an advertisement for another product presents a more subtle question. In On Davis v. The Gap, Inc.,*fn5 the plaintiff held a copyright in a form of sculptured ornamental eye jewelry that the defendant, which had several lines of business, depicted in print advertisements for Gap label stores. The Court of Appeals for our Circuit held that the plaintiff "failed to discharge his burden by submitting [the defendant's] gross revenue . . . derived in part from sales under other labels within [its] corporate family that were in no way promoted by the advertisement, not to mention sales under the 'Gap' label of jeans, khakis, shirts, underwear" and other products.*fn6 Although it recognized that the literal terms of Section 504(b) might suggest that proof of the corporate gross revenues would be sufficient, it observed that "the term 'gross revenue' under the statute means gross revenue reasonably related to the infringement, not unrelated revenues."*fn7 In other words, "the statutory term 'infringer's gross revenue' should not be construed so broadly as to include revenue from lines of business that were unrelated to the act of infringement."*fn8
Davis leaves unanswered the question whether proof of an advertiser-infringer's gross profits for the line of business promoted by an advertisement would suffice under Section 504(b) as proof of the infringer's gross revenue where, as here, the advertisement infringes plaintiff's copyright by reproducing within it the plaintiff's copyrighted work or whether additional proof of a causal connection between the infringement and the defendant's revenues is necessary.*fn9 Dr. Chiagouris' proposed testimony presumably is either addressed to the possibility that such evidence will prove necessary or, perhaps, be intended simply to anticipate an argument by Coors that its Coors Light gross revenues were not attributable to the infringement. In either case, however, the Court's exclusion of Dr. Chiagouris' testimony does not affect the plaintiff's burden. It is what it is. Plaintiff's contrary contention is mistaken.
Passing to the admissibility of the testimony, it is well to begin with a summary of ...