                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-1899


ANTHONY LAWRENCE DASH,

                Plaintiff - Appellant,

           v.

FLOYD MAYWEATHER, JR., an individual; MAYWEATHER PROMOTIONS;
MAYWEATHER PROMOTIONS LLC, a/k/a Mayweather Promtions LLC;
PHILTHY RICH RECORDS INC.; WORLD WRESTLING ENTERTAINMENT
INC.,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:10-cv-01036-JFA)


Argued:   March 20, 2013            Decided:   September 26, 2013


Before DAVIS and THACKER, Circuit Judges, and Mark S. DAVIS,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by published opinion.    District Judge Davis wrote the
opinion, in which Judge Thacker joined.      Circuit Judge Davis
wrote a separate opinion concurring in the judgment.


ARGUED: William Angus McKinnon, MCGOWAN, HOOD & FELDER, LLC,
Rock Hill, South Carolina, for Appellant.      Mark G. Tratos,
GREENBERG TRAURIG, Las Vegas, Nevada; Jerry S. McDevitt, K&L
GATES, LLP, Pittsburgh, Pennsylvania, for Appellees.  ON BRIEF:
John G. Felder, Jr., MCGOWAN, HOOD & FELDER, LLC, Columbia,
South Carolina; Thomas L. Moses, MONAHAN & MOSES, LLC,
Greenville, South Carolina, for Appellant.    Curtis B. Krasik,
K&L GATES, LLP, Pittsburgh, Pennsylvania, Joshua W. Dixon, K&L
GATES, LLP, Charleston, South Carolina, for Appellee World
Wrestling Entertainment, Inc.; Bethany Rabe, GREENBERG TRAURIG,
Las Vegas, Nevada, P. Benjamin Zuckerman, BUCKINGHAM, DOOLITTLE
&   BURROUGHS,  Boca    Raton,  Florida,  for   Appellees  Floyd
Mayweather, Jr.,    Mayweather Promotions, Mayweather Promotions
LLC, and Philthy Rich Records Inc.




                               2
DAVIS, District Judge:

      In this copyright infringement case, Anthony Lawrence Dash

(“Dash”)     alleges     that     Floyd       Mayweather,           Jr.    (“Mayweather”),

Mayweather Promotions, Mayweather Promotions LLC, Philthy Rich

Records, Inc., and World Wrestling Entertainment, Inc. (“WWE”),

(collectively “Appellees”), violated his copyright by playing a

variant of Dash’s copyrighted music during Mayweather’s entrance

at two WWE events.           Dash appeals from the district court’s grant

of summary judgment on the issue of his entitlement to damages

under 17 U.S.C. § 504(b).               For the reasons set forth below, we

affirm.

                                           I.

                                           A.

      In 2005, Dash composed an instrumental music track entitled

“Tony Gunz Beat” (“TGB”).           Dash has created a number of musical

tracks; however, Dash has never received revenue from TGB or any

other musical composition.

      On    February     7,     2008,     Mayweather,           a    well-known       boxer,

entered     into   a   contract    with       the      WWE   under        which   Mayweather

agreed to promote and perform at a live WWE pay-per-view event:

Wrestlemania XXIV.           Tickets for Wrestlemania XXIV were sold out

at the time the parties entered into the contract.                            The contract

did   not   address     the     music    to       be   played       during    Mayweather’s

appearance     at      the     event,      nor         did    the         parties    discuss

                                              3
Mayweather’s entrance music at the time they entered into the

contract.

      At     some     point        prior    to        Wrestlemania      XXIV,        the       WWE

communicated to Mayweather that it had selected a song by the

musical artist 50 Cent to be played as Mayweather entered the

ring at the event.              However, the night before Wrestlemania XXIV,

one   of    Mayweather’s         associates         communicated       to    the    WWE        that

Mayweather        would    be     entering       to    a   different        song,       entitled

“Yep.”        Mayweather’s          manager         provided    the    WWE     with        a    CD

containing the song and represented that Mayweather owned all

rights to the song and was granting the WWE rights to use it in

connection with his appearance.                       On March 30, 2008, Mayweather

appeared     at     Wrestlemania         XXIV,       entering    the   arena        to   “Yep,”

which played for approximately three minutes.                          Dash claims that

“Yep”      combines       lyrics    with       his     now-copyrighted         instrumental

music, TGB.

      On     August       19,    2009,     Mayweather       entered         into    a    second

contract with the WWE in which he agreed to appear as a “Raw

Guest Host” on the WWE’s August 24, 2009 broadcast of its live

weekly program, RAW.              Like the Wrestlemania XXIV contract, this

contract     did    not     include      any     terms     or   conditions         related      to

Mayweather’s entrance music.                   On August 24, 2009, in accordance

with the RAW contract, Mayweather appeared as a live guest host



                                                4
on RAW.     As in Wrestlemania XXIV, “Yep” was played in connection

with Mayweather’s appearance.

     Although Dash alleges that he created TGB in 2005, he did

not file a copyright application for the beat with the United

States     Copyright   Office   until       sometime   in   2009.   Dash   then

received a Certificate of Registration providing an effective

date of registration for TGB of October 13, 2009.                   (J.A. 33).

Dash claims that Appellees’ use of “Yep” in connection with both

of Mayweather’s WWE appearances infringed his copyright in TGB.

Therefore, the claimed infringement is alleged to have occurred

after Dash composed TGB, but before his copyright registration

became effective.

     For the purpose of summary judgment, the parties stipulated

to   the    existence    and    amount       of   several    revenue   streams

associated with Wrestlemania XXIV and the August 24, 2009, RAW

broadcast. 1   The parties further stipulated as follows:

     1
       Dash claims the following revenue streams with respect to
the WWE: (1) ticket sales from Wrestlemania XXIV; (2) pay-per-
view buys of Wrestlemania XXIV; (3) revenues from the webcast of
Wrestlemania XXIV; (4) home videos of Wrestlemania XXIV; (5)
live   event   merchandise    from   Wrestlemania   XXIV;   (6) the
Wrestlemania   XXIV   event    program;   (7)   revenues   from the
television broadcast of Wrestlemania XXIV; (8) ticket sales from
the August 24, 2009, RAW broadcast; (9) television rights fees
from the August 24, 2009, RAW broadcast; (10) Canadian
television   advertising    during   the   August   24,   2009, RAW
broadcast; (11) live event merchandise from the August 24, 2009,
RAW broadcast; and (12) the event program from the August 24,
2009, RAW broadcast. (J.A. 933).


                                        5
       7.   [Dash] has adduced no evidence that the playing
       of the “Yep” song at Wrestlemania XXIV or the August
       24, 2009 RAW show increased any of the WWE revenue
       streams . . . beyond that which would have existed
       without the song “Yep.”

       8.   [Dash] has adduced no evidence that WWE received
       any additional revenue beyond that which would have
       existed without the song “Yep,” in any of the revenue
       streams for Wrestlemania XXIV or the August 24, 2009
       RAW show . . . due to the use of the “Yep” song by
       Mayweather.

Id.

                                          B.

       Dash     filed   this    copyright       infringement    action      against

Appellees on April 26, 2010.              Dash initially sought preliminary

and permanent injunctive relief, actual damages, profit damages

from     both    Wrestlemania      XXIV   and    the   August   24,    2009,    RAW

broadcast, and statutory damages, all as set forth in 17 U.S.C.

§ 504.     Dash later amended his Complaint to remove his request

for statutory damages.          As the district court observed, because

Dash   had      not   registered    his   copyright    prior    to    the   alleged

infringement, statutory damages were not available to him.                     See

Dash v. Mayweather, No. 3:10cv1036-JFA, 2012 WL 1658934, at *4

(D.S.C. May 11, 2012).

       Following      several   discovery      disputes   between     the   parties

and upon Appellees’ motion, the district court bifurcated the

proceedings with respect to liability and damages.                    The parties

then filed a joint motion asking the district court to address



                                          6
Dash’s entitlement to damages under § 504 before reaching the

question of Appellees’ liability for infringement.                        The district

court    granted       this    motion     and    ordered     Appellees      to     submit

partial summary judgment motions concerning Dash’s entitlement

to actual and profit damages under § 504(b), which Appellees

later filed.

       In response, Dash filed a report prepared by a retained

expert,    Dr.    Michael       Einhorn,     discussing       the    amount      of    both

actual    and    profit       damages    Dash    should    receive       based    on    the

alleged infringement (the “Einhorn Report”).                    The Einhorn Report

described       certain       background        information     concerning         Dash’s

history as an artist and the general importance of music to the

WWE.      It    then   addressed        Dash’s   entitlement        to   damages      under

§ 504(b).       Regarding actual damages, the Einhorn Report listed

four benchmark licensing fees paid to other artists for the use

of their music at Wrestlemania XXIV.                  Based on those fees, the

Einhorn Report stated that Dash “would have earned a maximal sum

of $3,000 for the use of his musical composition.”                        (J.A. 1088).

Accordingly,      the     Einhorn   Report       concluded     that      Dash’s    actual

damages were “no more than $3,000.”                Id. at 1082.

       With respect to profit damages, the Einhorn Report reviewed

the WWE’s various profit streams attributable to Wrestlemania

XXIV, calculated the value of Mayweather’s appearance at that

event relative to the net profits derived from the event, and

                                            7
then calculated the value of “Yep” to Mayweather’s appearance

based      on   the     minutes    of    use       relative    to     the     length    of

Mayweather’s performance.               Id.        The Einhorn Report concluded

that $541,521 of the WWE’s net profit from Wrestlemania XXIV was

attributable to the WWE’s infringing use of TGB.                           Id. at 1090.

The Einhorn Report performed the same calculation with respect

to the net profits that Mayweather derived directly from his

appearance        at   Wrestlemania     XXIV,       concluding      that    $480,705    of

such profits was attributable to the infringing use.                              Id. at

1091.       The    Einhorn   Report      did       not    conduct   similar     analyses

concerning the August 24, 2009, RAW broadcast, concluding that

there was not sufficient information to apportion a share of the

Appellees’ net profits to the infringing use of TGB.                              Id. at

1082.       Therefore,     based   only       on    the    calculations       related   to

Wrestlemania XXIV, the Einhorn Report concluded that Dash should

receive “no less than . . . $1,019,226,” over and above any

actual     damages     received,    “to       disgorge”      the    profits    Appellees

derived from their alleged infringement of Dash’s copyrighted

music. 2    Id.


     2
       We observe that the sum of the apportioned net profits
recited in the Einhorn Report is $1,022,226 and not $1,019,226.
(J.A. 1090-91).    It appears that Dr. Einhorn subtracted his
maximal estimation of Dash’s actual damages from the total
profit damages in reaching the figure of $1,019,226, although he
did not address this apparent step in his analysis.



                                              8
      On   May    9,    2012,       the   district      court       held       a    hearing    on

Appellees’ motions for summary judgment.                       Following the hearing,

the   district        court    issued     an       order     granting       both      motions,

finding that Dash was not entitled to either actual or profit

damages under § 504(b).               Addressing profit damages first, the

district court considered the issue of Dash’s entitlement to a

portion of the profits Appellees derived from Wrestlemania XXIV

and from the August 24, 2009, RAW broadcast.                            With respect to

these profit damages, the district court found that Dash had

failed     to    satisfy      his    initial        burden     of    proof         under     this

Circuit’s burden shifting approach to § 504(b).                                Specifically,

in light of Dash’s stipulation that the playing of “Yep” did not

increase the revenues of either event beyond what such revenues

would have otherwise been, the district court found that Dash

had   failed     to    present       evidence        demonstrating         a       causal    link

between    the    alleged      infringement          and   the      enhancement         of    any

revenue     stream      claimed      by   Dash.         In     the    absence         of     such

evidence,       the    district      court         concluded     that      there      was     “no

conceivable connection” between the alleged infringement and the

claimed revenues and that, absent evidence establishing such a

connection, summary judgment was appropriate on the issue of

profit damages.        Dash, 2012 WL 1658934, at *3.

      The district court also held that Dash was not entitled to

recover any actual damages under § 504(b).                           In so holding, the

                                               9
district court found that Appellees had offered evidence that

TGB did not have a market value, specifically, the lack of any

reported income on Dash’s tax returns and the absence of any

other     proof   that      he     had     previously       sold        his     musical

compositions.      In     response,      Dash   relied     only    on    the    Einhorn

Report’s calculation of TGB’s “maximal value,” which was based

on the fees paid to other entertainers at Wrestlemania XXIV.

The district court found that the Einhorn Report’s estimation of

TGB’s market value amounted to nothing more than speculation,

because the entertainers whose fees the Einhorn Report used as

benchmarks were not similarly situated to Dash.                         As Dash had

offered no other evidence to show that TGB had a market value,

the   district    court     held    that      Dash   had   failed       to     “offer[]

sufficient, concrete evidence to indicate an actual value of the

beat,” and concluded that Appellees were therefore entitled to

“summary judgment on the actual damages claim.”                          Id. at *5.

Because the district court found that Dash was not entitled to

any profit or actual damages, 3 it further held that the case



      3
       In concluding that Dash was not entitled to any relief in
the underlying action, the district court held that it did not
need to address Dash’s claim for injunctive relief because
Mayweather had agreed not to use “Yep” again and, even if
Mayweather did use the song again, Dash’s copyright of TGB would
present the district court with a much different question. Dash
does not appeal this decision, so the question of his
entitlement to such relief is not before this Court.


                                         10
would not proceed to the liability phase, dismissed the pending

discovery motions as moot, and directed that the case be closed.

     Dash    moved   for   reconsideration     of   the   district    court’s

order, which motion the district court denied.            Dash now appeals

both the district court’s original grant of summary judgment and

its denial of reconsideration with respect to his entitlement to

actual and profit damages under § 504(b).

                                    II.

     We review a grant of summary judgment de novo, applying the

same standard as the trial court and without deference to the

trial court. 4   Couch v. Jabe, 679 F.3d 197, 200 (4th Cir. 2012)

(quoting Nader v. Blair, 549 F.3d 953, 958 (4th Cir. 2008)).                In

conducting    such   review,   we   construe    the   evidence,      and   all

reasonable inferences that may be drawn from such evidence, in


     4
       As noted above, Dash also appealed the district court’s
denial of his Rule 59(e) motion for reconsideration, (J.A. 616);
however, Dash neither briefed nor argued this issue on appeal.
See Fed. R. App. P. 28(a)(9) (requiring an appellant to brief
all issues raised on appeal); see also Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (holding that
failure to comply with Rule 28(a)(9) “triggers abandonment of
that claim on appeal”); Cavallo v. Star Enter., 100 F.3d 1150,
1152 n.2 (4th Cir. 1996). Because Dash briefed and argued only
the merits of summary judgment, Dash has abandoned his appeal of
the district court’s denial of his Rule 59(e) motion for
reconsideration.   Had Dash not abandoned this claim, we would
have reviewed it for abuse of discretion, a much more
deferential standard than the de novo standard applied to our
review of the district court’s grant of summary judgment.    See
Brown v. French, 147 F.3d 307, 310 (4th Cir. 1998).



                                    11
the light most favorable to the nonmoving party.                             PBM Prods.,

LLC v. Mead Johnson & Co., 639 F.3d 111, 119 (4th Cir. 2011).

Summary judgment is appropriate only when “there is no genuine

dispute as to any material fact and the movant is entitled to a

judgment as a matter of law.”               Fed. R. Civ. P. 56(a).

       Any party may seek summary judgment, regardless of whether

he may ultimately bear the burden of proof under the relevant

statutory scheme—as a copyright infringer may under 17 U.S.C.

§ 504(b).       Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d

514,    521–22      (4th       Cir.    2003).        Irrespective      of   the     burdens

assigned       by   the      applicable     substantive        law,    Federal      Rule    of

Civil    Procedure        56    requires    the      movant    to   show    that    summary

judgment is warranted.                Fed. R. Civ. P. 56(a).           We have observed

that    once    the    movant      has    satisfied     this    “initial       burden”      of

demonstrating          the     absence     of    a   genuine     dispute       as   to     any

material       fact,    the     nonmoving       party   must    show    that    a   genuine

dispute does, in fact, exist.                   Bouchat, 346 F.3d at 522 (citing

Matsushita Elec. Co., v. Zenith Radio Corp., 475 U.S. 574, 586-

87 (1986)).           A party raises a genuine issue of material fact

with respect to a claim only if a reasonable jury could return a

verdict for that party on each element necessary to that claim.

Banca Cremi, S.A. v. Alex. Brown & Sons, Inc., 132 F.3d 1017,

1027 (4th Cir. 1997).



                                                12
      Although the court must draw all justifiable inferences in

favor of the nonmoving party, the nonmoving party must rely on

more than conclusory allegations, mere speculation, the building

of   one   inference     upon   another,       or    the    mere       existence      of   a

scintilla of evidence.          See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 252 (1986); Stone v. Liberty Mut. Ins. Co., 105 F.3d

188, 191 (4th Cir. 1997).             Rather, “a party opposing a properly

supported motion for summary judgment . . . must ‘set forth

specific     facts    showing    that    there       is    a     genuine      issue    for

trial.’”      Bouchat, 346 F.3d at 522 (quoting Fed. R. Civ. P.

56(e) (2002) (amended 2010)).              If the adverse party fails to

provide     evidence     establishing          that       the     factfinder          could

reasonably decide in his favor, then summary judgment shall be

entered “regardless of ‘[a]ny proof or evidentiary requirements

imposed by the substantive law.’”                   Id. (quoting Anderson, 477

U.S. at 248).        Guided by this standard of review, we analyze the

merits of Dash’s appeal.

                                        III.

      Dash contends that the district court erred in granting

summary judgment on his claims for actual and profit damages.

Title 17, United States Code, Section 504(a) provides that “an

infringer of copyright is liable for either (1) the copyright

owner’s    actual     damages    and     any    additional         profits      of     the

infringer,    as     provided    in    subsection         (b);    or    (2)   statutory

                                         13
damages, as provided by subsection (c).” 5                     With respect to the

availability       of   actual       and/or    profit   damages,      Section        504(b)

provides that:

       The copyright owner is entitled to recover the actual
       damages suffered by him or her as a result of the
       infringement, and any profits of the infringer that
       are attributable to the infringement and are not taken
       into account in computing the actual damages.

17 U.S.C. § 504(b).            Thus, the statute aims to both compensate

for the       injury    resulting      from    infringement     and      to   strip    the

infringer of the profits generated from infringement, in order

to “make[] clear that there is no gain to be made from taking

someone      else’s     intellectual        property    without    their       consent.”

Walker      v.   Forbes,      Inc.,    28   F.3d   409,   412     (4th    Cir.    1994).

Recognizing the wide range of copyrightable material and the

numerous considerations involved in quantifying the losses and

gains that result from infringement, this Court has emphasized

that damages under § 504(b) are to be determined via a “case-by-

case       assessment    of    the    factors      involved,    rather        than    [by]

application of hard and fast rules.”                Id.

       Under the plain language of § 504, the copyright owner is

first entitled to any actual damages resulting from infringement



       5
       As noted above, Dash amended his Complaint to remove his
claim for statutory damages under § 504(c).    Accordingly, the
only question before the district court—and now this Court—was
Dash’s entitlement to damages under § 504(b).



                                              14
and then to certain profit damages, but only to the extent such

profit damages are not contemplated in the calculation of the

plaintiff’s        actual       damages.          See      17    U.S.C.      §   504(b).

Accordingly, we look first to the question of Dash’s entitlement

to actual damages under § 504(b) before considering whether he

is    entitled      to     a    portion      of      the     profits      derived     from

Wrestlemania XXIV and the August 24, 2009, RAW broadcast.

                                             A.

      The Copyright Act entitles a copyright owner to recover

“the actual damages suffered by him or her as a result of the

infringement . . . .”             17 U.S.C. § 504(b).           The statute does not

define the term “actual damages,” nor does it prescribe a method

for   calculating        such     damages.        Generally,        the   term   “actual

damages”      is     “broadly            construed      to      favor       victims     of

infringement.”       On Davis v. The Gap, Inc., 246 F.3d 152, 164 (2d

Cir. 2001) (collecting cases and commentaries).

      Consistent         with     this     approach,       courts    have     recognized

several methods for calculating the compensable loss suffered by

a copyright owner as a result of infringement.                         It is generally

accepted that “the primary measure of recovery is the extent to

which the market value of the copyrighted work at the time of

the    infringement         has     been     injured       or    destroyed       by    the

infringement.” Fitzgerald Publ’g Co., Inc. v. Baylor Publ’g Co.,

Inc., 807 F.2d 1110, 1118 (2d Cir. 1986); Mackie v. Rieser, 296

                                             15
F.3d 909, 917 (9th Cir. 2002) (quoting Frank Music Corp. v.

Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 512 (9th Cir. 1985)).

The fair market value of a copyrighted work is derived from an

objective, not a subjective, inquiry.                     Mackie, 296 F.3d at 917

(general      claims    of   “hurt     feelings”     or     an    owner’s   “personal

objections to the manipulation of his artwork” do not factor

into the determination of the work’s fair market value).

      Injury to a copyrighted work’s market value can be measured

in a variety of ways.              The first possible measure is the amount

of   revenue    that     the   copyright         holder    lost    as   a   result   of

infringement, such as his own lost sales of the work.                            Polar

Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 708 (9th Cir.

2004).     Another cognizable measure is the fair market value of

the licensing “fee the owner was entitled to charge for [the

infringer’s] use” of his copyrighted work.                       On Davis, 246 F.3d

at 165 (“If a copier of protected work, instead of obtaining

permission and paying the fee, proceeds without permission and

without compensating the owner, . . . the owner has suffered

damages to the extent of the infringer's taking without paying

what the owner was legally entitled to exact a fee for.”).                           “In

order    to   make     out   his    claim   that    he    suffered      actual   damage

because of the infringer’s failure to pay the fee, the owner




                                            16
must show that the thing taken had a fair market value.” 6   Id. at

166.

       Regardless of the measure or combination of measures used

to establish actual damages, a copyright holder asserting such

damages “must prove the existence of a causal connection between

the alleged infringement and some loss of anticipated revenue.”

Thoroughbred Software Int’l, Inc. v. Dice Corp., 488 F.3d 352,

358 (6th Cir. 2007).   Although the nature of actual damages will

often require a court to “engage in some degree of speculation,”

Stevens Linen Assocs., Inc. v. Mastercraft Corp., 656 F.2d 11,

14 (2d Cir. 1981), the amount of damages sought cannot be based

       6
       In On Davis, the Second Circuit decided that “as between
leaving the victim of the illegal taking with nothing, and with
charging the illegal taker with the reasonable cost of what he
took, the latter, at least in some circumstances, is the
preferable solution.” On Davis, 246 F.3d at 166. Specifically,
to rule out actual damages in cases where the owner “may be
incapable of showing a loss of either sales or licenses to third
parties . . . would mean that in such circumstances an infringer
may steal with impunity.”     Id.   In emphasizing these points,
however, the Second Circuit was discussing the importance of
construing § 504(b)’s “actual damages” provision broadly enough
to include “the owner’s loss of the fair market value of the
license fees he might have exacted of the defendant.”    Id.  On
Davis expressly limited the circumstances under which a lost
licensing fee could be recovered to those instances in which
“the owner [can] show that the thing taken had a fair market
value.”    Id.    As discussed below, Dash has not presented
sufficient nonspeculative evidence to show that TGB had a fair
market value.    Accordingly, Appellees cannot be charged “with
the reasonable cost of what [they] took,” because there is not
sufficient evidence to establish (in the context of Appellees’
properly supported motions for summary judgment) that such a
reasonable cost exists. Id.



                                17
on “undue speculation,” On Davis, 246 F.3d at 166.                        In the

summary     judgment   context,     once    a    defendant        has    properly

supported his claim that there are no actual damages resulting

from      infringement,     the     plaintiff        must     respond         with

nonspeculative evidence that such damages do, in fact, exist.

See Bouchat, 346 F.3d at 522.

       The district court concluded that Dash was not entitled to

actual    damages   under   §   504(b)     because    he    had    not    offered

“sufficient, concrete evidence to indicate an actual value of

his beat.”       Dash, 2012 WL 1658934, at *5.               On appeal, Dash

argues that the Einhorn Report provided evidence of TGB’s value,

specifically, that Dash would have received up to $3,000 for the

use of TGB if he had been paid a licensing fee for the beat.

Dash, therefore, relies on his lost licensing fee as the only

measure of his actual damages claim.

       Under the lost licensing fee theory, actual damages are

generally calculated based on “what a willing buyer would have

been reasonably required to pay to a willing seller for [the]

plaintiffs’ work.”        Jarvis v. K2 Inc., 486 F.3d 526, 533 (9th

Cir.     2007)   (quoting   Frank   Music    Corp.,    772    F.2d       at   512)

(internal quotation marks omitted).             “The question is not what

the owner would have charged,” nor what the infringer might have

been willing to pay.        On Davis, 246 F.3d at 166.              Rather, the

objective inquiry focuses on the fair market value of the work

                                     18
as “negotiat[ed] between a willing buyer and a willing seller”

contemplating the use the infringer made.                        Id. at 172.

      We note, first, that, as the movants for summary judgment,

Appellees       had    the    initial       burden     to    show    the    absence      of   a

“genuine dispute as to any material fact and [that they] were

entitled to judgment as a matter of law.”                               Fed. R. Civ. P.

56(a); see also Bouchat, 346 F.3d at 522.                        Thus, on the question

of actual damages, Appellees were required to show that there

was no genuine dispute among the parties as to the existence of

any   actual      damages          and,     accordingly,         that      Appellees     were

entitled to judgment on Dash’s actual damages claim because the

record did not reveal that “a willing buyer would have been

reasonably required to pay a willing seller” for the use of TGB

at the WWE events.            Jarvis, 486 F.3d at 533 (quoting Frank Music

Corp.,    772    F.2d    at     512)       (internal     quotation        marks    omitted).

Appellees       satisfied          this     initial      burden      by     providing     the

district     court       with       Dash’s      admission        that      he     had   never

commercially exploited TGB, with copies of Dash’s income tax

returns    from       2003    to    present      (none      of   which     reflect      income

related to the sale or licensing of any musical composition),

and with Dash’s failure to offer any other proof that he had

previously       sold    one       of     his   beats.       (J.A.      944-964).        Once

Appellees properly made and supported their motions for summary

judgment on Dash’s actual damages claim, the burden shifted to

                                                19
Dash to provide nonspeculative evidence establishing a genuine

dispute as to the existence of such damages.                            See Bouchat, 346

F.3d at 522 (citing Matsushita Elec. Co., 475 U.S. at 586-87).

Dash has failed to meet that burden.

       As        he     did   before        the     district        court,     Dash    relies

exclusively on the Einhorn Report’s estimation of the licensing

fee he might have been paid to support his actual damages claim. 7

Appellant’s Br. at 21–22.                   Before discussing this estimation, we

review          those    portions      of    the       thirteen-page      Einhorn      Report

relevant to Dash’s claim.

                                                  1.

       The       Einhorn      Report    opened         with    an   Introduction,         which

stated          that    Dr.    Einhorn       had       been    retained       to   give     his

“professional valuation of economic damages that resulted from

the unauthorized taking of a copyrighted musical segment—[TGB]—

that       was    originally       written     by      the    plaintiff      Anthony   Dash.”

(J.A. 1080).             Importantly, this Introduction then acknowledged

that “defendants Floyd Mayweather and Cory Harris co-wrote over

the beat,” thereby adding original lyrics to Dash’s copyrighted

work       to    produce      an   “infringing         musical      composition,”      “Yep,”


       7
       Although the record contains some vague references to
Dash’s prior sale of musical compositions, Dash neither relied
on nor provided evidence of such sales.   (J.A. 157-64, 168-69,
180-82, 205-08). Therefore, we do not consider such references.



                                                  20
which was played when Mayweather appeared at both WWE events.

Id.    The Introduction concluded with a review 17 U.S.C. § 504(b)

and    the       observation,     in    relevant          part,    that    Dash’s    “actual

damages include lost licensing fees or actual foregone profits

suffered as a consequence of the infringement.”                           Id.

       After        summarizing        Dr.         Einhorn’s       qualifications,        the

documents reviewed, and its ultimate conclusions, the Einhorn

Report described certain “Background” information concerning the

parties      and     the    general          relationship         between       professional

wrestling and music.            Id. at 1083-85.             This information included

references to Dash’s production of musical works for various

“recording artists/labels and two video games, NBA Ballers and

NARC,” as well as Dash’s 2009 nomination for Producer of the

Year at the annual South Carolina Music Awards.                                 Id. at 1083.

The Background also reviewed the characteristics of professional

wrestling matches in general and the history of ring appearances

by various recording artists, noting that “wrestling shows have

become       a     very    important          venue       for     the     performance     and

synchronization of music.”                   Id.    Following this general review,

the Einhorn Report noted that the WWE employs a general manager

and    vice-president        to   operate           the   company’s       music    business,

including         “oversee[ing]        music       selection,      licensing,       and   the

hiring of composers and bands.”                       Id. at 1084.           In describing

this    “music      business,”         Dr.    Einhorn       observed      that    the   WWE’s

                                               21
general manager regularly hires composers to create pieces of

music for use at WWE events.                Id.      In other instances, he “will

generate ring excitement and emotional value by licensing works

and      recordings           with     previous       histories     and         audience

recognition.”          Id.     As an example of this practice, Dr. Einhorn

noted that “the WWE paid the rock group Red Hot Chili Peppers a

[large] sum . . . for the one time use of one of its most

popular songs.”              Id.     After describing the WWE’s practice of

contracting       and        licensing      music,      the   Background         section

concluded with a discussion of Wrestlemania XXIV, both from an

economic and entertainment perspective, including the match in

which Mayweather participated.                 Id. at 1084-86.        Regarding the

use of “Yep,” the Einhorn Report noted that the song, which

Mayweather co-wrote and recorded to Dash’s now-copyrighted beat,

“enhanced the emotional aspect of Mayweather’s ring persona and

was a critical part of raising heat in the audience before the

match began.”         Id. at 1085.

      The Einhorn Report then considered Dash’s actual damages

claim.      In    so    doing,       Dr.   Einhorn    first   observed    that,     when

calculating      a     copyright      holder’s    lost    licensing      fee,    “it   is

appropriate to consider those song licenses that were executed

for the event and select as benchmarks those uses that are most

comparable       to    the     infringing     events.”        Id.   at    1087.        He

continued:

                                             22
        From an economic perspective, it is not appropriate
        simply to itemize all related music licenses and
        choose the average as a representative benchmark.
        Rather, other contracted works may vary from the song
        in question with regard to commercial history and
        present appeal.      In particular, factors to be
        considered in selecting a benchmark include previous
        popularity of the work, reputation of songwriter, the
        presence of a released sound recording, and the
        possibility of a new recording in the studio.

Id.     Dr. Einhorn acknowledged that “Yep” “is a new derivative

work based purportedly on [TGB],” and that “[n]either Y[ep] nor

[TGB] were commercial[ly] released at any previous time.”                              Id.

In summarizing his review of several WWE contracts, Dr. Einhorn

noted    that    he   had    “not   viewed          any   licenses    with   terms     that

implicate comparable musical compositions used at Wrestlemania”

and   that   he    had      “also   not    viewed         any    contracts   that    Floyd

Mayweather entered that implicate the valuation of any musical

work.”    Id.

      In estimating the value of Dash’s lost licensing fee, the

Einhorn Report listed four benchmark license fees paid to other

artists for the use of their songs at Wrestlemania XXIV.                             These

songs were “written prior to the event and owned independently

by their songwriter or publisher.”                        Id. at 1088.        The WWE’s

licensing       contracts      gave       it    “all       use    rights     related    to

performance and synchronization of [the] musical compositions in

Wrestlemania and surrounding events.”                      Id.    “Each of the[] four

songs was a previously released work that also implicated master


                                               23
use rights for sound recordings (artists: Red Hot Chili Peppers,

Snoop Dogg, Fuel, and Snoop Dogg) respectively controlled by a

major    record    label.”     Id.       The     Einhorn     Report       included   the

specific fees paid for each of the songs.                    Id.    The lowest was

$3,000 and the highest was significantly more.                        Id.     Based on

the     information    provided      concerning        these       benchmarks,       the

Einhorn     Report        acknowledged          that   “[f]rom        a     commercial

perspective each composition is a more established work than”

TGB.      Id.      Without   further       explanation,      the    Einhorn     Report

determined that, “[b]ased on these benchmarks, it is safe to

conclude that [Dash] would have earned a maximal sum of $3,000

for the use of his musical composition.”               Id.

       After summarily stating this maximal estimation of Dash’s

lost licensing fee, the Einhorn Report went on to review three

contracts that the WWE had executed with artists for new songs,

that is “works for hire.”            Id.        The “music licensors” of these

“new individual works included Brand New Sin, Alden, and Island

Def Jam Music Group (f/s/o Saliva).”                   Id.     The work-for-hire

contracts included both flat fee and royalty agreements.                             Id.

After    listing    the     individual      contracts,       the    Einhorn     Report

concluded its discussion of Dash’s actual damages by noting that

“[t]hese work-for-hire contracts involve professional recording

acts that are far more established than Dash, Mayweather, or

Harris,” and by summarizing the artists’ respective popularity

                                           24
and success.            Id.     It appears that, because these artists were

more   established            than     any      of    the     artists       who    contributed     to

“Yep,”       Dr.       Einhorn       did        not    consider           the    terms    of    their

contracts,         which      were     significantly               higher       than    the    maximal

estimation         provided         for      TGB,          when    analyzing          Dash’s    actual

damages claim.               Rather, he simply concluded his discussion of

Dash’s claim after reviewing the artists’ success, without any

mention of how or whether the benchmark work-for-hire contracts

factored into his analysis and without revisiting the maximal

sum    assigned         to    TGB    based        on       the     four    benchmark         licensing

contracts he had previously reviewed.

       For       the    reasons      that        follow,          we    find    that    the    Einhorn

Report’s estimation of Dash’s lost licensing fee, without more,

is too speculative to show that “a reasonable jury could return

a verdict” in Dash’s favor on his actual damages claim, and

thus, that summary judgment was appropriate.                                    Anderson, 477 U.S.

at 248.

                                                      2.

       First, Dr. Einhorn’s estimation of Dash’s lost licensing

fee failed to expressly conclude that TGB had a market value.

Rather, the Einhorn Report stated only that Dash “would have

earned       a     maximal       sum       of     $3,000          for     use    of    his     musical

composition.”            (J.A. 1088) (emphasis added).                             In summarizing

this conclusion, Dr. Einhorn reiterated that “[t]he respective

                                                      25
valuation of [Dash’s] missed opportunity” to earn a licensing

fee was “no more than $3,000.”           Id. at 1082 (emphasis added).

      To survive summary judgment on his actual damages claim,

Dash was required to offer nonspeculative evidence that TGB had

a   fair   market    value,   such   that       he   “suffered    actual   damage

because of the infringer[s’] failure to pay [a licensing] fee.”

On Davis, 246 F.3d at 166.               Like any other evidence, expert

testimony, such as the Einhorn Report, will not preclude summary

judgment    unless    it   raises    a        genuine   dispute   concerning   a

material fact.       See Fed. R. Civ. P. 56(a); see also Hayes v.

Douglas Dynamics, Inc., 8 F.3d 88, 92 (1st Cir. 1993).                         By

referencing TGB’s maximal value—without any actual mention of a

minimum value—the Einhorn Report failed to satisfy this burden.

Rather it appears to have concluded only that, to the extent TGB

had a market value, such value was no more than $3,000. 8                    This




      8
        Notably absent from Dr. Einhorn’s analysis is any
suggestion that Dash’s history as an artist or the general
importance of music to the WWE supports the conclusion that TGB
had a fair market value. Dr. Einhorn failed to rely on, or even
cite, such propositions. Instead, he listed four benchmark fees
paid for other works used at Wrestlemania XXIV before summarily
concluding that Dash would have earned a maximum fee of $3,000.
(J.A. 1088).     The Einhorn Report’s “Background” section is
discussed further below.    We note such omissions here only to
emphasize the deficiencies in the Einhorn Report’s analysis of
Dash’s actual damages claim.


                                         26
conclusion does not rebut Appellees’ properly supported motions

for summary judgment on Dash’s actual damages claim. 9

      The Einhorn Report’s failure to clearly state that TGB had

a fair market value is notable in light of the fact that Dr.

Einhorn was retained for the express purpose of evaluating the

economic damages resulting from Appellees’ alleged infringement

of   the   beat.   His   omission   of   a   clear   statement   of   value

suggests that he could not conclude, either with certainty or

sound reasoning, that Dash would have been paid a licensing fee

for Appellees’ use of TGB.      However, our analysis does not end


      9
       The possibility that our criticism will prompt attentive
plaintiffs’ attorneys to require their experts to expressly
state some nominal minimal value for an allegedly infringed work
is, frankly, desirable.   Without some express statement that a
copyrighted work has a fair market value—either generally or
through the assignation of a specific minimum value—defendants
and courts alike are left with little to test or evaluate
whether such a fair market value exists.     They must, as we do
here, critically evaluate the expert’s report to determine
whether it, in fact, opines that the work has a fair market
value or whether it merely concludes, as the Einhorn Report
apparently did, that, to the extent there is a market value,
such value is no more than a certain sum. The necessity of this
threshold inquiry into whether an expert has opined as to the
fact of actual damages could easily be avoided by a clear
statement that the copyrighted work has some market value.
Moreover, we cannot assume that experts will automatically
assign some nominal value to an evaluated work.     There may be
cases in which such a clear statement of value is not possible.
Of course, as we note below, when such a statement is made, it
will necessarily have to be evaluated to determine whether it is
derived from sufficiently concrete evidence.     See Waterman v.
Batton, 393 F.3d 471, 478 n.8 (4th Cir. 2005) (quoting Pace v.
Capobianco, 283 F.3d 1275, 1280 n.11 (11th Cir. 2002)).



                                    27
with Dr. Einhorn’s choice of words.                   Rather, we next consider

whether,    to    the   extent      the    Einhorn    Report    could   be     read   to

implicitly       suggest     that    TGB    had   a   fair     market   value,      such

suggestion, and the evidence upon which Dr. Einhorn relied, is

sufficient to establish a genuine dispute of fact with respect

to Dash’s actual damages claim.              We conclude that it is not.

                                            3.

      Although we have determined that the Einhorn Report failed

to   expressly     rebut     Appellees’      properly     supported     motions       for

summary    judgment     as    to    Dash’s   actual      damages    claim,     we   note

that, even if the Einhorn Report had suggested or even expressly

concluded that the use of Dash’s beat at WWE events was of some

value to Appellees, summary judgment would still be appropriate

because    the     evidence        supporting     such    conclusion     is     overly

speculative in light of the record before us and, therefore, is

insufficient      to    establish     a    genuine    dispute      regarding    Dash’s

actual damages claim.               See Waterman v. Batton, 393 F.3d 471,

478 n.8 (4th Cir. 2005) (“Opinion evidence is only as good as

the facts upon which it is based.” (quoting Pace v. Capobianco,

283 F.3d 1275, 1280 n.11 (11th Cir. 2002) (internal quotation

marks omitted)).

                                            a.

      Under the lost licensing fee theory relied upon by Dash,

evidence of a copyright holder’s prior licensing or valuation of

                                            28
his work can provide sufficient support for his actual damages

claim.     See, e.g., Polar Bear Prods., 384 F.3d at 709 (affirming

an actual damages award based on the copyright holder’s actual

price quote to the infringer).               Here, Dash has failed to present

any evidence—such as an affidavit or a prior contract—that he

had ever sold, offered for sale, or licensed one of his beats to

Appellees or anyone else.            See Dash, 2012 WL 1658934, at *4.

Instead, he offers only the Einhorn Report, which relies solely

on those fees paid to other artists whose works were used at

Wrestlemania XXIV.

       Although the Einhorn Report did not rely on Dash’s history

as a musical artist when evaluating his actual damages claim, we

note   that   the    Background     section      did   briefly   reference   this

history.      (J.A. 1083).     Specifically, Dr. Einhorn stated that

“Dash is a young music producer” who “has produced musical works

for a number of recording artists/labels and two video games,

NBA Ballers and NARC.”            Id.       Dr. Einhorn continued, “For his

professional efforts as a music creative, Mr. Dash was nominated

in 2009 for Producer of the Year at the annual South Carolina

Music Awards.”       Id.   These brief statements, without more, are

too    speculative    to   create       a    genuine   dispute   as   to   Dash’s

entitlement to actual damages.

       To survive summary judgment of an actual damages claim, a

copyright holder “must show that the thing taken had a fair

                                            29
market value.”          On Davis, 246 F.3d at 166.                  Evidence of the

owner’s prior sale or licensing of copyrighted work will satisfy

this burden when it is “sufficiently concrete.”                           Id. at 161.

For instance, in On Davis, the Second Circuit held that the

plaintiff’s testimony that “numerous rock stars” had worn his

copyrighted eyewear in published photographs and, “that on one

occasion he was paid a royalty of $50 for the publication by

Vibe magazine of” such a photo, was “sufficiently concrete to

support a finding of fair market value of $50 for the type of

use   made   by   Vibe.”        Id.;    see     also    Jarvis,    486    F.3d    at    534

(finding     sufficiently       concrete       evidence     to    support    an    actual

damages award when the record included expert testimony as to

the specific value of each image and evidence of Jarvis’ prior

compensation      for    use    of   the    images).        The    value    of    Davis’

testimony     concerning       his     prior    royalty     fee    was    not    that    it

established a reasonable amount of damages, but rather that it

provided     concrete    evidence       that     Davis     would   have     received     a

royalty from The Gap for the use of his copyrighted eyewear in

its   advertisement.           Stated    differently,       Davis’       prior    royalty

showed   that     his   copyrighted        works       generally   had    fair    market

value when used in printed advertisements, sufficient to support

a finding that the specific, infringed work, in fact, had such

value when similarly used.                 Neither Dr. Einhorn nor Dash has

provided any evidence that Dash ever received compensation for

                                           30
his prior productions.          Unlike in On Davis, there is simply no

concrete evidence concerning Dash’s past compensation for use of

his musical works.

       The record also fails to establish that the productions

referenced in the Einhorn Report occurred prior to Appellees’

alleged infringement of TGB.          Specifically, TGB was composed in

2005 and allegedly infringed in 2008 and 2009.                       The Einhorn

Report was authored on October 4, 2011.                 (J.A. 1079).       To show

that    Dash’s     prior   productions      establish    that   he    would   have

earned a licensing fee for Appellees’ use of TGB in 2008 and

2009, the Einhorn Report should have, at a minimum, demonstrated

that    some     of   those   productions    occurred     before     the   alleged

infringement. 10       Not only did the Einhorn Report fail to show

that Dash was ever compensated for his prior works, it also

failed      to   establish    that   such     works     predated     the   alleged

infringement. 11       Without any evidence that Dash previously sold


       10
        Dr. Einhorn did refer to Dash’s nomination for Producer
of the Year in 2009.    (J.A. 1083).   However, it is not clear
from the record whether this nomination occurred before or after
the August 24, 2009, RAW broadcast, the second and final
instance of alleged infringement at issue.          Additionally,
although the Einhorn Report referenced two specific video games
for which Dash produced musical works, it failed to provide any
information concerning those games, such as their release dates.
       11
       We note, again, that Dash’s deposition testimony contains
some vague references to the dates of his prior productions and
the fact that he may have received some compensation for such
productions.  (J.A. 157-64, 168-69, 180-82, 205-08).    However,
(Continued)
                                       31
or   otherwise   garnered   some   market     value   for    the    use   of   his

music, any claim that he would have earned a licensing fee,

based solely on his history as an artist, is too speculative to

preclude summary judgment on his actual damages claim.                    Indeed,

the Einhorn Report seems to implicitly accept this proposition,

based on its conclusion that Dash’s lost licensing fee should be

determined through an analysis of the licensing fees that the

WWE paid to other artists for use of their works at Wrestlemania

XXIV and not through an analysis or discussion of Dash’s own

compositions.    Id. at 1087.

                                       b.

      Although evidence of a copyright holder’s own prior sale or

licensing   of   copyrighted    work    can   support       the    existence   of

actual damages under § 504(b), such evidence is not required to

defeat a motion for summary judgment.                 Otherwise, first-time

copyright   owners   would     never    be    able    to    overcome      summary

judgment of an actual damages claim.              Rather, evidence of an

owner’s prior sales is but one way of measuring “what a willing




Dash was unable to recall any details and failed to supplement
(or even offer to supplement) the record with concrete evidence
of   the  same.     Accordingly,  we   find  that   these  vague
approximations, to the extent they could be relied on to support
the conclusion that TGB had a fair market value, are too
speculative to rebut Appellees’ properly supported motions for
summary judgment.



                                       32
buyer   would   have   been    reasonably    required   to    pay   a   willing

seller” for the use that the infringer made.             Jarvis, 486 F.3d

at 533 (quoting Frank Music Corp., 772 F.2d at 512) (internal

quotation marks omitted).         Evidence of licensing fees paid to

other artists for the use of other works may, in some cases, be

sufficient to support the conclusion that a copyright holder

would have been entitled to such a fee for the use of his work;

however, such evidence may properly be rejected as a measure of

damages if it is too speculative.            See Frank Music Corp., 772

F.2d at 513.

     Evidence     of    an     infringer’s    entrance       into   licensing

agreements      with   other     copyright    holders    is     not      overly

speculative when the benchmark licenses contemplate “comparable

uses of comparable works.”           Real View, LLC v. 20-20 Techs.,

Inc., 811 F. Supp. 2d 553, 557 (D. Mass. 2011) (quoting Oracle

USA, Inc. v. SAP AP, No. 07-1658, 2011 WL 3862074, at *7 (N.D.

Cal. Sept. 1, 2011)) (internal quotation marks omitted); see

also McRoberts Software, Inc. v. Media 100, Inc., 329 F.3d 557,

566-67 (7th Cir. 2003) (rejecting a defendant’s allegation that

a lost licensing fee award was based on undue speculation in

light of evidence that included proof of comparable software

deals made by the defendant).         But, if the benchmarks relied on

are inapposite, they may, without more, be too speculative to

support   a   copyright   holder’s   claim    for   actual    damages.      See

                                     33
Country Rd. Music, Inc. v. MP3.com, Inc., 279 F. Supp. 2d 325,

331 (S.D.N.Y. 2003) (collecting cases recognizing the error of

beginning with benchmark licenses for works or uses different

from that made by the infringer).

       Here, the district court concluded that Dash’s evidence of

the fees that the WWE paid to well-known artists at Wrestlemania

XXIV was irrelevant and overly speculative because such artists

were not similarly situated to Dash.                Dash, 2012 WL 1658934, at

*5.     We agree that Dash’s evidence is too speculative to support

his actual damages claim because it relies solely, and without

explanation, on the licensing fees paid for works that were not

comparable to TGB.

       In calculating Dash’s actual damages, Dr. Einhorn conceded

that he had “not viewed any licenses or terms that implicate

comparable musical compositions used at Wrestlemania” and that

he    had   “also    not   viewed   any    contracts       that      Floyd   Mayweather

entered     that     implicate    the     valuation       of   any    musical    work.”

(J.A.    1087)      (emphases    added).        Indeed,    Dr.    Einhorn     not   only

expressly conceded that he had not analyzed comparable works, he

also emphasized the differences between “Yep” and the selected

benchmarks under the identified “factors to be considered in




                                           34
selecting     a     benchmark.” 12         Id.         Specifically,     Dr.       Einhorn

observed     that    “[n]either       Y[ep]      nor    [TGB]    were   commercial[ly]

released     at     any    previous    time,”          whereas   each   of     the    four

benchmarks “was a previously released work that also implicated

master use rights for sound recordings . . . controlled by a

major     record     label.”         Id.    at     1087-88.         Based     on     these

differences, Dr. Einhorn concluded that, “[f]rom a commercial

perspective, each composition is a more established work than

[TGB].” 13     Id.    at    1088.      Thus,      the    four    benchmarks     used   to


     12
        These factors, which were based on “commercial history
and present appeal,” included “previous popularity of the work,
reputation of the songwriter, the presence of a released sound
recording, and the possibility of a new recording in the
studio.” (J.A. 1087).
     13
        Although Dr. Einhorn did not refer to any information
described in the report’s Background section when considering
Dash’s actual damages, we observe that his description of the
WWE’s licensing practices and his reference to the highest
listed benchmark further emphasize the disparity between TGB and
the benchmark licenses.   Specifically, Dr. Einhorn noted that,
in addition to hiring composers to create new works for WWE
events, the WWE would “licens[e] works and recordings with
previous histories and audience recognition.” (J.A. 1084). As
“a new derivative work,” “Yep” carried no such history or
recognition and Dr. Einhorn failed to explain why, under such
circumstances, Dash would have earned a licensing fee for
Appellees’ use of his beat in the song.           Id. at 1087.
Additionally, when describing the type of songs generally
licensed by the WWE, Dr. Einhorn noted that “the WWE paid the
rock group Red Hot Chili Peppers a [large] sum . . . for the one
time use of one of its most popular songs,” apparently referring
to the first benchmark. Id. at 1084, 1088. Again, as a “new
derivative work” from new artists, id. at 1087, “Yep” was not at
all comparable to “one of [the] most popular songs” of a well-
known band, such as the Red Hot Chili Peppers, id. at 1084. Dr.
(Continued)
                                           35
estimate Dash’s lost licensing fee were inapposite and, without

more, are too speculative to preclude summary judgment of Dash’s

actual damages claim.         See Country Rd. Music, 279 F. Supp. 2d at

331.

       This is not to say that a copyright holder must always rely

on precisely comparable works to defeat a properly supported

motion    for   summary   judgment      of    his     actual    damages     claim.

Indeed, it may be difficult or impossible for a first-timer,

such as Dash, to identify such works.               Accordingly, so long as a

copyright holder’s entitlement to lost licensing fees is not

based on “undue speculation,” § 504(b) does not require summary

judgment of such a claim simply because it is based on non-

comparable      benchmarks.       See    On    Davis,     246    F.3d     at   164

(recommending that the term “actual damages . . . be broadly

construed to favor victims of infringement”).                  However, while a

copyright holder may rely on benchmarks that are not comparable

to the allegedly infringed work, he may not rely solely on such

benchmarks.     See Country Rd. Music, 279 F. Supp. 2d at 331.                  To

survive summary judgment, he must, at a minimum, demonstrate how

the cited noncomparable benchmarks compel the conclusion that he

would have earned a licensing fee absent infringement.                    That is,



Einhorn failed to explain how the differences between TGB and
the benchmarks used affected his analysis.



                                        36
he must demonstrate that, despite the differences between the

benchmarks       and    his     work,   such     benchmarks         create     a    genuine

dispute of fact as to his actual damages claim.                              See Fed. R.

Civ.    P.     56(a);     see   also    Bouchat,       346    F.3d    at     522    (citing

Matsushita, 475 U.S. at 586-87).                  An expert affidavit, such as

the Einhorn Report, can satisfy this burden, if it describes

both “the factual basis and the process of reasoning which makes

the    conclusion       viable.”        Hayes,    8    F.3d    at    92.       An     expert

affidavit lacking such explanation will be insufficient to rebut

a properly supported motion for summary judgment.                              Id. (“[A]

bare ultimate expert conclusion [is not] a free pass to trial

every     time     that    a    conflict     of       fact    is     based    on      expert

testimony.”).

       Here, the Einhorn Report detailed several facts, including

the     four     benchmark      licenses    used       to    estimate        Dash’s       lost

licensing fee.          But the report failed to include any description

of the “process of reasoning” used to determine that Dash “would

have earned a maximal sum of $3,000 for use of his musical

composition.”           (J.A. 1088).       Instead, Dr. Einhorn cited four

admittedly       inapposite      benchmarks       before      summarily        concluding

that the lowest of such benchmarks was an appropriate maximal

value    of    the     licensing    fee    Dash    could      have    earned        for    the




                                           37
Appellees’ use of TGB. 14          Id.     Without at least some explanation

of   the    process     by    which   TGB’s       estimated     maximal      value    was

determined, the Einhorn Report’s perfunctory conclusion is too

speculative to rebut Appellees’ properly supported motions for

summary     judgment,      because    that      conclusion      is   based     only   and

without explanation on the fees paid to well-established artists

for the use of their works at Wrestlemania XXIV.

       To aid plaintiffs and their experts going forward, we note

the many deficiencies in the Einhorn Report that compel this

conclusion.         First,     although     the    Einhorn      Report    acknowledged

that    “it   [would]      not   be   appropriate        simply      to   itemize     all

related       music     licenses      and       choose      the      average     as     a

representative benchmark,” it failed to explain how Dr. Einhorn

selected      the   four      benchmarks     licenses      cited     to   support     his

estimation     of     TGB’s    maximal     value.    Id.   at     1087.      While    the

report stated that certain factors should be used to determine

the most comparable benchmark works, it failed to describe how

such factors recommended selection of the specific benchmarks.


       14
       We note that Dr. Einhorn did not expressly state that the
lowest benchmark was the appropriate maximal value of TGB.
Rather, he simply stated that, “Based on the[] benchmarks, it is
safe to conclude that [the] plaintiff would have earned a
maximal sum of $3,000 for use of his musical composition.”
(J.A. 1088). We infer this connection from the fees listed and
the estimation provided, but Dr. Einhorn failed to explain his
estimation in such terms.



                                           38
Id.   at   1088.        Dr.    Einhorn      noted    that    such       benchmarks       were

identified “[b]ased on [his] review of available information of

songs   used     at    Wrestlemania         XXIV,”   but     he    failed     to    further

explain why such clearly inapposite benchmarks were selected and

whether    he    had    reviewed      any    other    licensing         agreements       when

determining the appropriate benchmarks.                    Id.

      Second,        although    the     Einhorn       Report          acknowledged       the

differences between TGB and the selected benchmarks, it failed

to    indicate       whether    and     to    what     extent          Dr.   Einhorn      had

considered such differences when estimating TGB’s maximal value.

For example, the report did not explain how the differences in

audience    recognition         and    release       history      factored        into    the

analysis.       Nor did Dr. Einhorn try to bridge the gap between the

“more established” artists and Dash by, for instance, drawing on

his expertise and experience in the industry to explain, even in

general terms, the difference between what a well-established

artist and       a    first-timer      typically      earn       for    similar    uses    of

their copyrighted work.               In light of Dr. Einhorn’s impressive

“Statement of Qualifications,” such explanation would not have

been unfounded or overreaching; rather, it would have provided

some support for any conclusion that Dash would have earned a

licensing fee because well-established artists had earned such

fees at Wrestlemania XXIV.



                                             39
       The   Einhorn       Report’s     failure      to     address    the    differences

between TGB and the benchmark licensing fees is compounded by

the     subsequent         analysis      of        the     benchmark        work-for-hire

contracts,         in   which   Dr.     Einhorn      apparently        concluded      that,

because such contracts “involve[d] professional recording acts

that are far more established than Dash, Mayweather, or Harris,”

they    should      not    factor     into     the       estimation    of    Dash’s   lost

licensing fee.            Id. at 1088.         Thus, in a single page of his

report,      Dr.    Einhorn     both    relied       on    and   dismissed      benchmark

licenses     by     more    established       artists,       without    explaining      why

such    disparate          approaches     to       the     various     contracts       were

appropriate.

       Third, and perhaps most importantly, although the Einhorn

Report acknowledged that “Yep” was “a new derivative work based

purportedly on [TGB],” it failed to explain at all how this fact

impacted the analysis of Dash’s actual damages claim.                              Id. at

1087.     That is, Dr. Einhorn listed fees that the WWE paid to use

completed works at Wrestlemania XXIV without any mention of the

fact that TGB formed but one part of “Yep,” “[t]he song [that

allegedly] enhanced the emotional impact of Mayweather’s ring

persona” and was, therefore, “a critical part of raising heat in

the audience before the match began.”                      Id. at 1085.      Dr. Einhorn

simply failed to discuss the fact that the lyrics, which were

co-written by Mayweather and Cory Harris, added original, non-

                                              40
infringing content to the entrance song.                           To the extent Dr.

Einhorn concluded that “Yep” had value, he failed to conclude

that TGB contributed to any such value.

       In discussing the Einhorn Report’s deficiencies, we do not

mean at all to suggest that an expert opinion based on works by

more established artists could never support an actual damages

claim at summary judgment.               Rather, in this case, the Einhorn

Report’s      summary       comparison         of     TGB     to     such     works        is

insufficient, given that the benchmarks are not comparable to

TGB and that Dr. Einhorn failed to explain how the differences

between the benchmarks used and Dash’s beat factored into his

analysis of Dash’s actual damages claim.

                                            c.

        Before     concluding      our   discussion         of    actual    damages,       we

wish to address certain points raised in the Background section

of Dr. Einhorn’s report regarding the importance of music in WWE

events and Dash’s reputation as an artist.                         These facts, when

considered with the WWE’s payment of other licensing fees at

Wrestlemania       XXIV,    could    arguably        be    interpreted      as     evidence

that TGB had some value, although we note that Dr. Einhorn did

not    cite   to   or   rely   on    any    of      the   facts    set     forth    in    the

Background section when analyzing Dash’s actual damages claim.

More   importantly,        those    facts      are   not    sufficient       to    rebut   a

properly      supported     motion       for     summary      judgment,       even       when

                                            41
considered with Dr. Einhorn’s summary comparison of TGB to the

listed benchmarks.

       As discussed above, Dr. Einhorn’s brief reference to Dash’s

reputation as an artist did not establish that Dash had ever

been   compensated      for    the    use       of   his     musical     compositions.

Additionally,     nothing     in     Dr.    Einhorn’s        description      of   Dash’s

reputation indicated that this reputation predated the alleged

infringement, such that Dash’s history as a musical artist might

be sufficient to conclude that he would have earned a licensing

fee for Appellees’ use of TGB.                  Thus, nothing in Dr. Einhorn’s

brief review of Dash’s history as an artist creates a genuine

dispute as to his actual damages claim, in light of Appellees’

evidence that Dash has never received revenue from TGB or any

other musical composition.

       Nor is the fact that music, in general, has value to the

WWE sufficient to show that Dash’s beat, in particular, had such

value.     Under such reasoning, any piece of music, regardless of

its quality or reputation, would necessarily have a fair market

value to Appellees.           Were such evidence sufficient to rebut a

properly    supported    motion       for     summary        judgment,    a   copyright

holder   would   need    to    show    only      that    the    infringer     generally

values the type of copyrighted material infringed, without any

evidence that the specific work had a fair market value.                           Such a

result     is   untenable      and    contrary          to     the   well-established

                                           42
principles regarding actual damages under § 504(b).                  While the

term   “actual    damages”   should    be   “broadly   construed     to   favor

victims of infringement,” a copyright holder “must show that the

thing taken had a fair market value.”               On Davis, 246 F.3d at

164, 166 (emphasis added).            That some music has value to the

WWE, even great value, is not enough to establish that TGB had a

fair market value.

       Moreover, the Einhorn Report itself fails to support such a

conclusion.      When reviewing the importance of entrance music to

professional wrestling generally, and to the WWE specifically,

Dr.    Einhorn   incorporated   deposition      testimony    that    “a   music

selection ‘makes [a WWE] product better, assuming it’s a good

piece of music.’”       (J.A. 1084) (emphasis added) (quoting Lawi

Dep. 105, Sept. 2011).          He further acknowledged that the WWE

generally pays licensing fees to artists for the use of works

with   certain   characteristics,      that   is,   “works   and    recordings

with previous histories and audience recognition.”                  Id.   Thus,

although music may play an important role in “raising heat” at

professional wrestling events, the record before us fails to

indicate that all music plays such a role.                  Accordingly, the

general importance of some music to the WWE is not enough to

establish that Appellees’ would have paid Dash a licensing fee

to use TGB as a component of “Yep.”           Id. at 1085.



                                       43
       Although Dash relies on the district court’s reasoning in

Wood v. Houghton Mifflin Harcourt Publishing, Co., 589 F. Supp.

2d 1230 (D. Colo. 2008), to support his claim for profit damages

under § 504(b), we note that this case could, at first blush, be

read   to     suggest    that      an    infringer’s      payment    for   use    of   any

copyrighted work of a particular type establishes that he would

pay to use all works of that type.                  Id. at 1246.       However, we do

not    read    Wood     so    broadly.        In   that    case,     Houghton    Mifflin

Harcourt (“HMH”) had purchased six licenses to use nine of Ted

Wood’s      (“Wood”)     photographs          in   two    textbook    series     and   an

educational periodical.             Id. at 1235.          Under the terms of these

licenses, HMH agreed “to publish no more than 40,000 copies of

the textbook or magazine in which [the] copyrighted photographs

were to appear.”             Id.        In his copyright infringement action,

Wood alleged that HMH had printed more than 40,000 copies of the

textbooks and periodicals and that HMH “committed an additional

infringement of his copyright . . . when it re-published several

of [Wood’s] photos . . . without securing a license to do so.”

Id.    Among the many arguments that HMH raised in its defense was

the    claim    that    “because         it   licensed     photographs     from    Wood,

rather than textual materials, his copyrighted material added no

value . . . to the language arts textbooks and periodicals.”

Id. at 1246.       The district court rejected this argument, noting

that “the very fact that the publisher pays fees for photographs

                                              44
to   be     used     in    language     arts     textbooks    and      periodicals

illustrates     that      those    photographs    have    value   to   HMH   as     it

creates and markets textbooks.”                 Id. (emphasis in original).

Although the district court’s broad statement, out of context,

could be read to support the proposition that an infringer’s

payment for the use of any copyrighted work of a given type is

sufficient to show that the infringer would have been reasonably

required to pay a fee to use a specific work of that type, the

facts of the case speak differently.                There, unlike here, the

infringer had executed a number of licensing agreements with the

copyright holder.           Such agreements provided concrete evidence

that Wood would have earned a licensing fee for HMH’s excess

uses of his copyrighted photographs.              We cannot adopt statements

made in this context to conclude that payment of any licensing

fee for a general type of copyrighted work is sufficient to show

that all works of that type would garner such a fee, absent any

other     evidence   that    the    allegedly    infringed    work     had   a    fair

market value.

     Likewise,       the    fact     that     Appellees    used     “Yep,”       which

included TGB, is not enough to show that Dash’s beat had fair

market value.          Allowing the “fact of use” alone to rebut a

properly supported motion for summary judgment would entirely

eliminate the copyright holder’s obligation to show that his

work had a fair market value, a requirement designed to combat

                                         45
the risk of abuse inherent in recognizing a plaintiff’s lost

licensing fee as a measure of § 504(b) actual damages.                                 On

Davis, 246 F.3d at 166.              In the face of overwhelming evidence

that his work lacked fair market value, the plaintiff would need

only to reiterate his initial complaint—that the defendant used

his   work    without    his    permission—to       survive    summary    judgment.

This result is almost certainly not what our sister circuits had

in mind when they recognized lost licensing fees as a measure of

actual damages under § 504(b).               Such an approach would preclude

a   § 504(b)    actual    damages     claim      from   ever    being    decided       on

summary judgment, no matter how speculative or deficient the

copyright holder’s evidence concerning his work’s fair market

value.       This outcome not only obviates the requirement that a

copyright holder show that the infringed work had a fair market

value, it also runs contrary to the well-established principles

governing summary judgment under Federal Rule of Civil Procedure

56.   See Glynn v. EDO Corp., 710 F.3d 209, 216 (4th Cir. 2013)

(“‘[C]onclusory     allegations        and      speculative    assertions    .     .    .

without further legitimate support clearly do[] not suffice’ to

create a genuine issue of material fact.” (quoting Guinness PLC

v. Ward, 955 F.2d 875, 901 (4th Cir. 1992))).

      Thus, none of the facts recited in the Background section

of the Einhorn Report is sufficient to show that Dash would have

earned   a     licensing       fee   for     Appellees’       use   of   TGB,    and,

                                           46
accordingly,        none    is    sufficient             to     rebut   Appellees’       properly

supported motions for summary judgment.                                 Nor do these facts,

taken together, create a genuine dispute for trial.                                 Although we

draw all reasonable inferences in favor of the nonmoving party,

“[a]   party    ‘cannot          create       a    genuine        issue    of     material    fact

through mere speculation or the building of one inference upon

another.’”      Stone, 105 F.3d at 191 (quoting Beale v. Hardy, 769

F.2d    213,    214       (4th     Cir.       1985))           (internal     quotation       marks

omitted).           Rather,       the     nonmoving             party     must    show   that     a

reasonable jury could return a verdict in his favor on each

element necessary to his claim—including damages.                                  Banca Cremi,

132 F.3d at 1027.

       Taken   as     a    whole,       the       Einhorn       Report     demonstrated       that

1) certain      music        plays       an        important       role      in    professional

wrestling matches; 2) the WWE recognizes the value of such music

through its operation of an in-house music business; 3) the WWE

played a song that included Dash’s now-copyrighted beat at two

events,     Wrestlemania              XXIV        and     the     August     24,     2009,      RAW

broadcast;      4)        the    WWE     paid           four     well-established        artists

licensing      fees        for     use        of        their     recognizable        works      at

Wrestlemania XXIV; and 5) sometime prior to 2011, Dash received

some recognition (but no compensation) for his work as a musical

artist.        We    would       be     building         inference        upon    inference      to

conclude that these facts were sufficient to rebut Appellees’

                                                   47
evidence that Dash’s musical works—including and especially TGB—

do not have a fair market value.                      The importance of music to the

WWE,   and    its     payment       for    use    of    music     from      well-established

artists, does nothing to compel the conclusion that Dash would

have received a licensing fee for TGB.                            And Dash’s sparse and

unspecified         history    as    a    musical        artist      does    not   require    a

different result.

       There are ways new artists such as Dash can establish the

existence      of    actual     damages.              Dash   could    have     submitted     an

affidavit regarding any prior sale, license, or valuation of his

musical      compositions.           Dr.    Einhorn          could   have     provided    some

minimal explanation of the process by which he determined TGB’s

estimated      maximal      value        from    the     four     inapposite       benchmarks

cited.     Without such evidence, any implicit suggestion that Dash

could have earned a licensing fee for Appellees’ use of TGB

simply because         well-established               artists    earned      licensing    fees

for the use of their works by the WWE is too speculative to

support Dash’s actual damages claim.                            “[T]here is simply too

great an analytical gap between the [benchmarks] and the opinion

offered”      to    rebut     Appellees’         properly       supported       motions    for

summary judgment.             Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146

(1997) (discussing the sufficiency of an expert’s opinion in the

context of its admissibility under Federal Rule of Evidence 702

and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

                                                 48
(1993)); see also Country Rd. Music, 279 F. Supp. 2d at 331

(applying Joiner to an actual damages claim under § 504(b)).

      “Although uncertainty as to the amount of damages will not

preclude recovery, uncertainty as to the fact of damages may”

and, in this case, does because the only evidence supporting the

existence of actual damages is overly speculative. 15                Frank Music

Corp., 772 F.2d at 513.            To the extent any uncertainty as to the

amount of such damages may exist, this question is not before us

in   light     of    Dash’s     failure   to   present    sufficiently   concrete

evidence     as      to   the    existence     of   any   actual   damages   under

§ 504(b). 16        Accordingly, we affirm the district court’s grant of

summary judgment as to Dash’s actual damages claim.


      15
        Indeed, while it is generally the wrongdoer who must
assume the risk of some uncertainty with respect to the damages
he has caused, this presumption applies only if the fact of
damage is established. See Mid-Am. Tablewares, Inc. v. Mogi
Trading Co., 100 F.3d 1353, 1367 (7th Cir. 1996) (quoting Robert
L. Dunn, Recovery of Damages for Lost Profits § 1.3 at 11) (“If
plaintiff’s proof leaves uncertain whether plaintiff would have
made any profits at all, there can be no recovery.”).
      16
         Dash has argued that the district court improperly
considered whether the Einhorn Report presented sufficient
evidence as to the amount of actual damages he suffered as a
result of the alleged infringement.    Appellant’s Br. at 21-22.
However, the district court concluded, as we do, that Dash
“relie[d] only on speculation, while [Appellees] have offered
evidence that indicates that [Dash’s] song did not have a market
value.”     Dash, 2012 WL 1658934, at *5 (emphasis added).
Accordingly, Dash incorrectly characterizes the district court’s
ruling, which concerned the fact and not the amount of actual
damages.    See Frank Music Corp., 772 F.2d at 513.    As stated
above, the amount of any actual damages is not before us.
(Continued)
                                          49
                                      B.

     Having    concluded      that    Dash      failed      to   establish       his

entitlement    to   actual   damages,      we   now   address    his    claim    for

profit damages.       The district court granted Appellees summary

judgment on this claim because it found that Dash had failed to

present evidence that Appellees’ revenues bore any causal link

to the infringement.     We affirm.

                                      1.

     As stated above, the Copyright Act provides for the award

of profit damages as follows:

     The copyright owner is entitled to recover . . . any
     profits of the infringer that are attributable to the
     infringement and are not taken into account in
     computing the actual damages. 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 U.S.C. § 504(b).          The statute’s “simplicity masks fiendish

difficulties    concerning     the   calculation      of”    these     amounts    in




However, we do note, as a practical concern, that it would be
difficult for a defendant to properly test or defend against Dr.
Einhorn’s report without at least some discussion of how the
selected benchmarks establish that Dash is entitled to actual
damages. Cf. Stevens Linen Assocs., 656 F.2d at 14 (affirming
the district court’s rejection of projected sales as a measure
of compensatory damages when there was “no basis on which the
court could evaluate the validity of the projections”).



                                      50
light    of    the    numerous          variables       at    issue          in    copyright     law.

Walker,       28     F.3d       at     412.         Therefore,           a    summary      of     our

jurisprudence on this issue follows.

                                                 a.

       In Walker v. Forbes, Inc., we dealt with the question of

the amount of profit damages to which a plaintiff is entitled

when    the    infringing            content    forms    only       one       component     of    the

defendant’s         product.            In     that    case,       the       defendant     used    a

photograph         taken    by        the    plaintiff        in    one       of     its   magazine

articles.          Id.     at    411.         The     plaintiff         sued,       demanding    the

revenue that magazine issue had generated for the defendants.

Id.     Following a jury trial, the plaintiff was awarded three

thirty-fifths of one percent of the claimed revenues.                                       Id. at

410–11.       The plaintiff appealed.                  Id. at 410.                In upholding the

award, we noted that, when “the infringement occurs as a small

part of a much larger work, the fact finder properly focuses not

on the profit of the work overall, but only on the profit that

the    infringement         contributes.”               Id.        at    415.         “While     [the

defendant] made substantial sums from [the] issue, if only a

small part of that amount can be attributed to the use of [the

plaintiff’s] photo, . . . then only a small part is his reward.”

Id.




                                                 51
                                            b.

      We expounded on this rule nine years later in Bouchat v.

Baltimore Ravens Football Club, Inc., 346 F.3d 514 (4th Cir.

2003).     In Bouchat, the defendants used the plaintiff’s “Flying

B” symbol as the logo of the Baltimore Ravens football team.

Id. at 516–17.       The plaintiff sought profit damages from a wide

variety of revenue streams ranging from stadium parking to video

games.     Id. at 517–18.              The district court first granted the

defendants partial summary judgment as to all revenue sources

except the “sales of merchandise bearing the Flying B logo” and

“royalties obtained from licensees who sold such merchandise.”

Id.      The district court later granted the defendants partial

summary    judgment       with     respect       to    the    revenues         from   minimum

guarantee    shortfalls,         free     merchandise,         trading         cards,    video

games, and game programs.                Id.     At trial, the jury found by a

preponderance       of     the     evidence       that       the     merchandise         sales

remaining    after       summary       judgment       were   wholly       attributable      to

factors     other    than        the     infringing          logo,       and    denied    the

plaintiff’s     claim      for     profit      damages.            Id.    at    519.       The

plaintiff appealed.         Id.

      In deciding the appeal, we discussed two methods by which a

defendant can argue that summary judgment is appropriate as to

all or some of a plaintiff’s profit damages.                         First, a defendant

can argue that the plaintiff has not met his initial statutory

                                            52
burden of “present[ing] proof . . . of the infringer’s gross

revenue.”       17 U.S.C. § 504(b).                   Following the precedent of our

sister circuits, we further held that this “gross revenue” that

plaintiffs       are     obligated          to        prove       “‘means     gross      revenue

reasonably       related        to     the            infringement,          not      unrelated

revenues.’”      Bouchat, 346 F.3d at 520–21 (quoting On Davis, 246

F.3d at 160) (citing Mackie, 296 F.3d at 912–16; Univ. of Colo.

Found., Inc. v. Am. Cyanamid Co., 196 F.3d 1366, 1375 (Fed. Cir.

1999); Taylor v. Meirick, 712 F.2d 1112, 1122 (7th Cir. 1983)

(“If General Motors were to steal your copyright and put it in a

sales brochure, you could not just put a copy of General Motors’

corporate income tax return in the record and rest your case for

an award of infringer's profits.”)).                          Therefore, we held that,

in order to meet his initial burden under § 504(b), a plaintiff

must   not     merely    present      proof        of    the      amount     of    the   claimed

revenue      streams,     but        must        also     provide         “more     than     mere

speculation as to the existence of a causal link between the

infringement and the claimed revenues.”                             Bouchat, 346 F.3d at

521.      If   the     plaintiff      fails       to     make      this     showing,     summary

judgment is appropriate.

       Second,    we    noted    that,       even       if    the    plaintiff       meets    his

statutory      burden    of     showing          proof       of    the    infringer’s      gross

revenues as described above, summary judgment is appropriate if

a defendant is able “to prove his or her deductible expenses and

                                                 53
the elements of profit attributable to factors other than the

copyrighted work.”           17 U.S.C. § 504(b).        Although the statutory

burden of proof on the issue of attributability rests with the

defendant,      this    presents     “no   obstacle     to   a    summary     judgment

award in favor of that party, so long as the requirements of

Rule 56 are otherwise satisfied.”                Bouchat, 346 F.3d at 521–22.

In order to prevail in this manner, the defendant must present

evidence that all of the claimed profits are “attributable to

factors other than the copyrighted work.”                    17 U.S.C. § 504(b).

If the defendant’s evidence is sufficient to “demonstrat[e] the

absence of a genuine issue of material fact,” the plaintiff must

“bring forth facts showing that ‘reasonable minds could differ’

on    a    material     point.”      Bouchat,     346   F.3d      at    522   (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).                           If

the       plaintiff’s     evidence     that      the    claimed         revenues     are

attributable to the infringement is unduly speculative, “merely

colorable,” or “not significantly probative,” summary judgment

can be granted to the defendant notwithstanding the fact that

the defendant bore the statutory burden of proof.                         Id. (citing

Anderson, 477 U.S. at 249).

          Therefore,    we    concluded     in    Bouchat        that     granting     a

defendant summary judgment on a revenue stream is proper under

two circumstances.           First, summary judgment is appropriate if

the plaintiff fails to meet his initial burden of proving the

                                           54
infringer’s gross revenues because “either (1) there exists no

conceivable         connection       between       the     infringement         and        those

revenues;      or     (2)       despite     the    existence       of     a    conceivable

connection, [the plaintiff has] offered only speculation as to

the existence of a causal link between the infringement and the

revenues.”         Id. at 522–23.          If the plaintiff fails to show such

a conceivable connection or causal link, then he fails to show

that    the    claimed          revenues     are    reasonably          related       to    the

infringement.             Second,    even    after       the    statutory      burden       has

shifted to the defendants, summary judgment may be granted if

the defendants file “a properly supported motion for summary

judgment”     showing       that     the    claimed      revenues       are   attributable

entirely      to    factors       other     than     the       infringement,        and     the

plaintiff     fails        to   respond     with    evidence       that       can    raise    a

genuine dispute as to the issue.                  Id. at 524.

       In Bouchat, we held that the granting of summary judgment

with respect to “the revenues from minimum guarantee shortfalls

and free merchandise” was proper because those revenues, which

were    based        on     licensing        agreements          that     predated          the

infringement,        “lack[ed]        all    conceivable         connection”          to     the

infringement.          Id.      at   524.      With      respect    to    the       remaining

revenue streams on which summary judgment had been granted, we

held that summary judgment was proper “despite the existence of

a conceivable connection between the infringement and the level

                                             55
of revenue that the [d]efendants earned from these sources.”

Id.     Although it was theoretically conceivable that the revenue

streams were connected to the infringement, the plaintiff had

“offered only speculative evidence of a causal link between the

infringement and the level of the revenues.”                  Id.; see also id.

at    525    n.10   (“[I]t    defies     credulity     that   a    consumer     would

purchase NFL trading cards in order to catch a glimpse of the

Flying B logo on a featured player’s helmet; or video games, so

as to see the logo on the simulated Ravens players; or a game

program,      simply     because   its   artwork      incorporated      the    Flying

B.”).         Therefore,     the   plaintiff     had    failed     to   prove     the

defendants’         gross     revenues      reasonably        related     to      the

infringement.          We further held that summary judgment as to these

revenues was also proper because the defendants had proven that

the claimed revenues were entirely attributable to factors other

than the infringement, and the plaintiff had failed to submit

evidence in rebuttal as required under Rule 56.                   Id. at 524–25.

       Because the plaintiff had failed to prove the defendants’

gross       revenues    reasonably     related   to    the    infringement,      and

because the defendants’ motion for summary judgment proved that

the claimed revenues were not attributable to the infringement,

we upheld the district court’s grant of summary judgment.




                                          56
                                           c.

       We revisited the question of the reasonable relationship

required between gross revenues and infringement two years later

in Bonner v. Dawson, 404 F.3d 290, 294 (4th Cir. 2005).                                In

Bonner,    the     defendants       erected     and    leased      a    building     that

infringed on the plaintiff’s architectural copyright.                            Id. at

292.    The plaintiff demanded all of the lease revenues as profit

damages.     Id.     After the jury found for the defendants on this

issue, the plaintiff moved for judgment as a matter of law.                           Id.

at 293.    The district court denied this motion, holding that the

plaintiff “had the burden of showing a causal link between the

infringement       and    the   profits    incurred,        a   link    that   the   jury

could have reasonably determined he had not shown.”                            Id.     In

denying the motion for judgment as a matter of law, the district

court also held that a reasonable factfinder could find that the

defendants    had        “show[n]   that   the    profits        were    derived     from

sources other than the infringement.”                 Id.

       The plaintiff appealed the district court’s denial of his

motion for judgment as a matter of law, and we confirmed that a

copyright plaintiff “has the burden of demonstrating some causal

link between the infringement and [a] particular profit stream

before the burden-shifting provisions of § 504(b) apply.”                             Id.

at 294 (citing Bouchat, 346 F.3d at 521).                       However, we rejected

the district court’s conclusion that, in order to show a causal

                                           57
link, the plaintiff was required to demonstrate “that the basis

for the profits was the particularized design of the building.”

Id.   Instead, we held that it was sufficient that the plaintiff

had “produced evidence of the profits generated by the leasing

agreements in the infringed building” because “[t]his amount was

derived exclusively from the infringed building; no other source

contributed to the generated funds.”                  Id.     Accordingly, we found

that the plaintiff had met his initial burden under Bouchat of

showing     some    causal      link     between      the   infringement         and    the

claimed profit stream.             Id.       Despite this ruling, we affirmed

the district court’s judgment because the jury reasonably could

have found that all of the claimed revenues were attributable to

factors other than the infringement.                  Id. at 295.

      The    building      in     Bonner      was     distinguishable           from    the

merchandise in Bouchat.           In Bouchat, the causal link between the

infringement and the profits alleged by the plaintiff required

the jury to find that a football team’s adoption of one logo

design    over     another      would    cause      consumers    to   purchase         game

programs,    trading      cards,        or   video    games    simply      to    see    the

infringing logo.         Bouchat, 346 F.3d at 525 n.10.               Although there

was a “conceivable connection” between the infringement and the

claimed sales of merchandise containing the Flying B logo, any

causal    link     between   the       two   was     so   unlikely    as   to     “def[y]

credulity.”        Id.   Because the plaintiff had provided no evidence

                                             58
that could persuade a reasonable jury that a causal link existed

between the infringement and the merchandise sales, and also

because     the   defendants     had   presented   uncontested   evidence

proving that all of the claimed revenues were attributable to

other factors, we held that summary judgment for defendants was

proper.    Id. at 525 & n.10.

       In contrast, the plaintiff in Bonner had presented evidence

that the claimed revenues were derived solely from a building

that infringed the plaintiff’s architectural designs.            Bonner,

404 F.3d at 294.      This was sufficient to prove some causal link

between the infringement of the designs and the revenues from

the building based on those designs, even if further evidence

showed that the infringed designs did not actually increase the

building’s revenues.     See id.

                                       d.

       In summation, whether at the summary judgment stage or at

trial, a plaintiff seeking profit damages has an affirmative

duty to prove the defendant’s “‘gross revenue reasonably related

to the infringement.’”         Bouchat, 346 F.3d at 520–21 (quoting On

Davis, 246 F.3d at 160).         This requires the plaintiff to prove

(1) the amount of the claimed revenue streams, and (2) that

there is some reasonable relationship “between the infringement

and th[ose] particular profit stream[s].”           Bonner, 404 F.3d at

294.      Proving that the claimed profit streams are reasonably

                                       59
related to the infringement requires the plaintiff to (1) allege

a   “conceivable      connection”            between     the    infringement         and    the

claimed revenues, and (2) offer nonspeculative evidence that a

causal link exists.       Bouchat, 346 F.3d at 522–23.

      The first step, alleging a conceivable connection, is not

an exacting standard.          A proffered connection will be considered

“conceivable”      even       if        it    is     highly         unlikely      that      the

infringement actually contributed to the claimed revenues.                                  See

id. at 525 & n.10 (finding that a conceivable connection existed

between   the     infringement           of    the       plaintiff’s       logo      and    the

defendants’ sale of trading cards, video games, and football

game programs even though it “defies credulity that a consumer

would   purchase”      such    products            out    of    a    desire    to     see    an

infringing    logo    featured          therein).         However,      in    order    for    a

conceivable      connection        to    exist,      the       connection      between      the

infringement and the revenues must be “at least hypothetically

possible.”       See id. at 524 (holding that the infringement was

not conceivably connected to revenues which the defendants were

entitled to receive via contracts that they had entered into

prior to the infringement).

      After the plaintiff has alleged a conceivable connection

between the infringement and the claimed revenues, his task is

not yet done.        The plaintiff must also prove the existence of a

“causal   link    between      the       infringement          and   the     level    of    the

                                              60
[defendant’s] revenues.”                 Id. at 524–25.               Once he has done so,

the burden then shifts to the defendant to prove that those

revenues are not actually attributable to the infringing aspects

of the work.      See Bonner, 404 F.3d at 294–95.

       In the summary judgment context, a defendant can challenge

the    relationship              between      the           claimed        revenues          and    the

infringement in any or all of three ways.                                 First, the defendant

can    argue     that       the     plaintiff            cannot       state       a     conceivable

connection between the infringement and the claimed revenues.

The plaintiff must respond to this challenge by arguing that

some   such     connection          exists.             A    defendant          will    be    granted

summary    judgment          on     this      basis          only     if    it     is     not      even

“hypothetically         possible”            that       the    infringement             could      have

affected the revenues, such as when the revenues were determined

prior to the infringement.                 Bouchat, 346 F.3d at 524.

       The second method by which a defendant can challenge the

connection between the infringement and the claimed revenues on

summary    judgment         is    to    argue       that,      although         there    may       be   a

conceivable       connection,            the        plaintiff             has     not     presented

sufficient evidence of a causal link between the infringement

and the claimed revenues.                    If a defendant makes this argument,

the plaintiff must respond by providing some “‘non-speculative

evidence       that     would       .    .     .        suggest       a    link        between      the

infringement          and         the      [defendant’s]              supposedly             enhanced

                                                   61
revenues.’”         Id.    at   525   (omission    provided)   (alteration      in

Bouchat) (quoting Mackie, 296 F.3d at 911).                   The plaintiff is

not required at this step to show that the infringement was the

primary cause of the defendant’s revenues, and a fair degree of

inference is allowed.           Cf. Bonner, 404 F.3d at 294 (holding that

where     the    claimed    revenues     were   derived   exclusively    from   a

building that was constructed based on infringing architectural

designs, the jury was required to find that a causal link had

been established).          However, the link provided by the plaintiff

must be reasonable in light of the evidence.                Bouchat, 346 F.3d

at 525 n.10 (rejecting a link that “defie[d] credulity”).

     As a third option, a defendant can seek summary judgment on

the basis that all of the claimed revenues are attributable to

factors other than the infringement. 17              Although the defendant

bears the statutory burden of proof on this issue, it can still

raise     a     proper    motion   for   summary   judgment    if   it   submits

evidence that no reasonable jury could find that any portion of

the claimed revenues is attributable to the infringement.                    Id.

at 522.         If the defendant’s motion is properly supported, the

     17
       We note that in the present case, the district court did
not reach this question because it found that Dash had not met
his burden of establishing that the claimed revenues were
reasonably related to the infringement.       See Dash, 2012 WL
1658934, at *4. Neither do we reach this issue. We discuss it
here solely to provide a more complete statement of the law,
especially given the role that this issue played in Bouchat.



                                          62
plaintiff must respond with evidence “showing that ‘reasonable

minds could differ’ on a material point,” or summary judgment

may be entered.     Id. (quoting Anderson, 477 U.S. at 250).

      It is important to emphasize the distinction between what

must be shown to demonstrate a causal link and what must be

shown to rebut a defendant’s argument that the revenues are not

attributable to the infringement.               In order to demonstrate a

causal link, the plaintiff must show that the infringement could

reasonably    be   viewed   as    one    of    the    causes   of   the   claimed

revenues.     In order to rebut a defendant’s evidence that the

claimed revenues are not attributable to the infringement, the

plaintiff must show that at least some portion of the revenues

was actually generated by the infringement, rather than by other

factors.     If the revenues have some reasonable causal link to

the   infringement,    but       the    evidence      shows    that   they   are

attributable to other factors, the plaintiff will have satisfied

his burden of demonstrating a causal link but failed to rebut

the defendants’ evidence that the revenues are not attributable

to the infringement.        Bonner, 404 F.3d at 294-95 (finding that

any reasonable jury would necessarily have found a causal link

between an infringing building and the revenues it produced, but

upholding    the   jury’s    verdict     for    the    defendants     because   a

reasonable jury could have found that the claimed revenues were



                                        63
attributable        solely      to     the    non-infringing     aspects    of    the

building).

       All    three    stages     of    the    summary   judgment   analysis      were

illustrated in Bouchat.                With respect to the first step, we

upheld summary judgment as to some of the defendants’ revenues

because the plaintiff had not shown that those revenues, which

were derived exclusively from preexisting contracts, might be

conceivably connected to the infringement.                   Bouchat, 346 F.3d at

524.     With respect to the remaining revenues, we first noted

that   the     defendants       had    presented    strong     evidence    that   the

claimed revenues were attributable solely to factors other than

the infringement, as required to support a motion for summary

judgment on that issue.               Id. at 525.    Because the plaintiff had

declined to present any non-speculative evidence, he had both

failed to adduce evidence of a causal link and failed to present

evidence       to     challenge        the    defendant’s    evidence      regarding

attributability, rendering summary judgment appropriate on both

bases.       Id. at 525 & n.10.

                                              2.

       Here, many of the revenue streams claimed by Dash have no

conceivable connection to the infringement because they involve

revenues that consumers and businesses paid to Appellees, or

agreed to pay Appellees, prior to discovering that “Yep” would

be played.          Cf. Bouchat, 346 F.3d at 524 (holding that the

                                              64
infringement was not conceivably connected to revenues that the

defendants      were    entitled      to   receive   via   contracts     they    had

entered into prior to the infringement).                   As explained below,

however, even with respect to the revenue streams for which a

conceivable connection might exist, Dash has failed to provide

nonspeculative          evidence      of    a   causal     link       between    the

infringement and the claimed revenues.

     Specifically, Dash has stipulated that he has “no evidence

that the playing of the ‘Yep’ song at Wrestlemania XXIV or the

August    24,    2009    RAW   show    increased     any   of   the    WWE   revenue

streams.”       (J.A. 933).        Nor has Dash provided evidence that the

playing of “Yep” increased any of the other Appellees’ revenue

streams.        Instead, Dash contends that he is not required to

submit specific evidence linking the claimed revenue streams to

the infringement. 18       He argues that because Wrestlemania XXIV and


     18
        Dash also argues that he should not be required to show
that the alleged infringement increased Appellees’ revenue
streams.    Dash’s argument is foreclosed by Bouchat, which
specifically required “a causal link between the infringement
and the level of the [defendants’] revenues.”    346 F.3d at 524
(emphasis added); see also Mackie, 296 F.3d at 911 (requiring
evidence that shows “a link between the infringement and the
[defendant’s] supposedly enhanced revenues” (emphasis added)).

     Additionally, Dash was required to show not merely that
Appellees generated more revenue from playing “Yep” than from
playing no song, but that they generated more revenue from
playing “Yep” than from playing a non-infringing song.    See
Bouchat,   346  F.3d  at  525  n.10  (discussing  whether the
defendants’ revenues were affected by “the team’s adoption of
(Continued)
                                           65
the August 24, 2009, RAW broadcast included “Yep,” the revenues

from    those     events,         like       the    revenues         from    the   building    in

Bonner, were “derived exclusively from the infringed” work, and

that this fact alone is sufficient to establish a causal link.

Bonner, 404 F.3d at 294.

       It   is     true          that        in    some       cases,     like      Bonner,    the

infringement will form such a significant aspect of the product

generating the claimed revenues that no further evidence will be

required to establish that those revenues were causally linked

to the infringement.                    See id.           However, when, as here, the

infringing content forms only a small, incidental portion of the

products    that      generated          the       claimed     revenue       streams,    further

evidence    is     necessary            to    link      the    claimed       revenues    to    the

infringement.         See Bouchat, 346 F.3d at 525 n.10; cf. Walker, 28

F.3d at 415 (holding that when “the infringement occurs as a

small   part     of     a    much       larger      work,      the    fact    finder    properly

focuses not on the profit of the work overall, but only on the

profit that the infringement contributes”).                                  Indeed, like the

infringing       logo       on   the     trading        cards,       video   games,     and   game

programs in Bouchat, it “defies credulity that a consumer would




one logo design rather than another,” not whether the defendants
generated more revenue using an infringing logo design than they
would have generated if the team had had no logo at all).



                                                   66
purchase” home videos of Wrestlemania XXIV simply to hear “Yep”

played when Mayweather entered the ring or watch the August 24,

2009, RAW broadcast in hopes of hearing the song played again.

346 F.3d at 525 n.10.             Further evidence was required before a

reasonable trier of fact could find that Appellees’ revenues

were causally linked to their brief infringement of TGB. Because

Dash    failed     to   present    such    evidence,      summary      judgment    was

proper.

                                          3.

       Instead of attempting to show that the claimed revenues are

reasonably related to the infringement, Dash has rested his case

on    the   fact   that   those     revenues     derive     from      products    that

peripherally include infringing content.                  This is insufficient.

See    Bouchat,     346   F.3d    at    525    (holding    that    the   fact     that

products      depicted    an     infringing      logo     did   not    establish    a

connection between the infringement and the revenue from the

sale of those products).               Because Dash provided the factfinder

with no reasonable basis for concluding that the infringement

contributed to Appellees’ profits, the district court properly

granted Appellees summary judgment on Dash’s claim for profit

damages. 19


       19
        In his briefs and at oral argument, Dash sets forth
several hypotheticals involving deliberate infringement that he
claims will follow unless copyright owners are allowed to
(Continued)
                                          67
                                   IV.

     For the foregoing reasons, the judgment of the district

court,   as   to   Dash’s   entitlement   to   both   actual   and   profit

damages under 17 U.S.C. § 504(b), is affirmed.

                                                                 AFFIRMED




collect a portion of profits derived from works containing
infringing content without showing that those profits are
reasonably related to the infringement.       As noted by the
district court, this argument overlooks the existence of
statutory damages, which, unlike profit damages, are designed
not merely to compensate but to deter.    F.W. Woolworth Co. v.
Contemporary Arts, 344 U.S. 228, 234 (1952); see also Walker, 28
F.3d at 415 (“The[] award [of profit damages] is designed to
remove from the defendant all benefit derived from the
misappropriation of the plaintiff's intellectual property. This
damages structure is not designed, as plaintiff's language
suggests, to be punitive.”).
     Therefore, Dash’s hypothetical scenarios do not convince us
to reconsider the clear rule of law that a plaintiff cannot
recover profit damages unless the claimed profits can be
reasonably linked to the infringement. Bonner, 404 F.3d at 294;
Bouchat, 346 F.3d at 522–23.


                                   68
DAVIS, Circuit Judge, concurring in the judgment:

     I concur in the judgment.




                                 69
