                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 07-2154


RICHARD BERMAN,

                  Plaintiff - Appellant,

           and

MAURA FLYNN; SPEAKEASY VIDEO, LLC,

                  Plaintiffs,

           v.

CURT JOHNSON; INDIE GENIUS PRODUCTIONS, LLC,

                  Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   T. S. Ellis, III, Senior
District Judge. (1:07-cv-00039-TSE-TRJ)


Argued:   December 4, 2008                    Decided:   March 6, 2009


Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Hamilton Phillips Fox, III, SUTHERLAND, ASBILL &
BRENNAN, L.L.P., Washington, D.C., for Appellant.     Steve G.
Heikens, Minneapolis, Minnesota, for Appellees. ON BRIEF: James
J. Briody, SUTHERLAND, ASBILL & BRENNAN, L.L.P., Washington,
D.C., for Appellant.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

             The   plaintiff,          Richard       Berman,         appeals      the     district

court’s    declaratory         judgment,       which          awards      his    co-plaintiff,

Maura Flynn, and the defendant, Curt Johnson, joint ownership of

the   copyright     in    the       film     Your       Mommy       Kills   Animals       (YMKA).

Specifically,       Berman         appeals    the       district         court’s    refusal       to

include in the declaratory judgment a provision affirming that

he has exclusive promotion and distribution rights to YMKA.                                      The

declaratory judgment was entered in post-trial proceedings after

a   jury   had     awarded         Berman    damages          against       Johnson       for    the

latter’s     complete         breach    of     the       contract         that     gave    Berman

certain promotion rights in YMKA.                         Because we agree with the

district court that it would constitute double recovery to grant

Berman     promotion      rights       after       he    had        recovered      damages       for

breach of contract, we affirm.



                                               I.

             Berman      is    the     president         of     a    public      affairs     firm,

Berman and Company, and manages several non-profit organizations

in that capacity.             One of those organizations, the Center for

Consumer Freedom (CCF), opposes the agenda of People for the

Ethical     Treatment         of     Animals        (PETA),         an    organization          that

advocates animal rights.                In his capacity as manager of CCF,

Berman entered a contract with Maura Flynn and Curt Johnson to

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produce    a    film,     later      titled     Your    Mommy    Kills   Animals,       that

would examine and criticize PETA’s activities.                       The terms of the

contract       were    laid    out    in    a   “Deal    Memo”    negotiated       by     the

parties at a meeting in the fall of 2005.                        Under the Deal Memo

Berman would invest $300,000 in the film (all of the expected

cost), would have priority in having his investment repaid, and

would receive $60,000 in profit on his investment.                                The Deal

Memo   also     transferred         exclusive       promotion     rights    in     YMKA    to

Berman’s company, stating that “[a]ny contracts for promotion of

said film . . . will be contracted through Berman & Company.”

J.A. 460.       (Berman testified at trial that this promotion right

was understood to include an exclusive distribution right as

well.)     Berman invested the $300,000 specified in the Deal Memo,

plus an additional $10,000 during production of the movie to

cover extra costs.

               At the fall 2005 meeting in which the Deal Memo was

agreed to, the parties also reviewed a written treatment (or

outline) of the film, prepared by Flynn, that set out the film’s

proposed content, including its themes (the “treatment”).                                 In

2006, disagreements arose regarding the treatment, as the film

was    being     directed      by     Johnson.          During    this     time    Johnson

received but repeatedly rejected recommended changes from Flynn.

Upon     its    completion          the    film     differed      greatly        from     the

treatment.            Rather   than       focusing      on   a   critique     of    PETA’s

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practices, as the treatment called for, the vast majority of the

film -- roughly eighty percent -- was                       dedicated to a discussion

of    the    trials     and       convictions        of    several     members    of     Stop

Huntingdon        Animal        Cruelty    (SHAC),        another    pro-animal      rights

group.           Further,       the    film     presented      the     SHAC    members       as

champions of free speech, and thus in a positive light.                                  Only

about    twenty      percent      of     the    film      involved   any    discussion       of

PETA.

                 Because the completed film varied from the treatment

and their understanding of its proposed content, Berman, Flynn,

and   Flynn’s       company,          Speakeasy      Video,    LLC   sued      Johnson    for

breach      of    contract,       actual       fraud,     constructive      fraud,     and    a

declaratory judgment as to the ownership of the copyright.                                The

breach of contract claim asserted that Johnson had not produced

a    film    consistent         with    the     treatment      and   that     Johnson     had

“promoted[d] the film via the Internet, interviews, screenings,

and   by     engaging       a    distribution          consultant”     in     violation      of

Berman’s exclusive promotion rights.                        J.A. 10.       The declaratory

judgment claim asked the court to recognize Speakeasy Video as

the owner of the copyright in the film; it made no mention of

any rights held by Berman.                 Johnson filed several counterclaims,

including one for a declaratory judgment awarding him ownership

of the copyright.



                                                 5
            At trial the jury found in favor of Berman and Flynn

on their breach of contract claims and in favor of Berman on his

actual fraud claim.            Berman was awarded $360,000 in damages for

the   breach      of    contract        and    $10,000     for     the    fraud        claim.

Following    the       jury    trial,    the      district    court      turned      to   the

declaratory       judgment      claims,       directing      the    parties       to      file

briefs on the issue of whether Speakeasy Video or Johnson owned

the copyright in YMKA.            In a memorandum responding to Johnson’s

request     for        declaratory       relief,      Berman       asked        that       any

declaration of Johnson’s copyright rights in YMKA recognize that

the exclusive right to promote and distribute the film had been

transferred to Berman in the Deal Memo.                      Following a hearing on

the copyright issue, the district court declared that Flynn and

Johnson were joint authors of YMKA, and thus co-owners of the

copyright.         In    the    same     order,      the     district     court        denied

Berman’s request for a declaration adjudging him owner of the

promotion    and       distribution       rights,     concluding         that   to     grant

Berman those rights after he had already recovered damages for

breach of contract would constitute a double recovery.                                 Berman

now appeals that order.



                                              II.

            Under Virginia law a plaintiff in a contract action is

“not allowed to recover for a breach of contract more than the

                                              6
actual loss sustained by him, nor . . . to be put in a better

position than he would have been had the wrong not been done and

the contract not been broken.”            Orebaugh v. Antonious, 58 S.E.2d

873, 875 (Va. 1950).          It follows that a party may not recover

more than once for the same injury.                 See Nizan v. Wells Fargo

Bank Minnesota National Ass’n, 650 S.E.2d 497, 502 (Va. 2007).

At issue here is whether the jury’s damages award to Berman took

into account the loss of the promotion and distribution rights

purportedly transferred by the Deal Memo.                     We agree with the

district court that the jury, in finding a breach of contract

and awarding damages, compensated Berman for all losses flowing

from the breach.        A declaration granting Berman the promotion

and   distribution     rights,     which     had    already      been   taken   into

account   in   the   jury’s   damages       award    to   him,    would   therefore

amount to a double recovery.

           At trial Berman asked for damages for the complete

breach    of   his     contract    with      Johnson,      including      Johnson’s

infringement    upon    Berman’s    promotion       and   distribution     rights.

This is made clear both from Berman’s complaint and his closing

argument at trial.         The breach of contract claim in Berman’s

complaint states that “Johnson has and continues to promote the

film via the Internet, interviews, screenings, and by engaging a

distribution consultant.”          J.A. 10.        Further, Berman’s lawyer in

closing argument stated that “[Johnson] breached the contract in

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another way, too.         Mr. Berman was supposed to have exclusive

promotion rights.       Mr. Johnson ignored those and went off on his

own.”   J.A. 374.

             Berman’s    presentation   of   the   violation    of   his

promotion rights as part of the larger breach of contract means

that the jury’s $370,000 verdict in his favor accounts for his

loss    of   these   rights.     Returning   exclusive   promotion   and

distribution rights in the film to Berman after he had been

awarded any damages for their loss as part of the contract’s

total breach would, as the district court concluded, result in a

double recovery.        Accordingly, the declaratory judgment entered

by the district court is

                                                               AFFIRMED.




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