Brian Andreas
v.
Volkswagen of America, Inc.
Case Overview
• In 1994 Andreas, an artist, created an image that
included the words, “most people don’t know that
there are angels whose only job is to make sure you
don’t get too comfortable & fall asleep & miss your
life.
• In 1999, Volkswagen’s advertising agency included
substantially similar language tot that in Andrea’s
image in an Audi TT television commercial.
• Andreas brought suit against the advertising agency
and Volkswagen for copyright infringement.
The Arguments
Volkswagen’s Arguments:
The profit during this period was
attributable to factors other than
the infringing language. This
evidence included two other
commercials during that period,
other aspects of the infringing
commercial, customer loyalty and
brand recognition. Andreas does
not have the right to all the profits
made during the time the
infringing commercial aired.
Andreas’ Arguments:
• By using his language in the
Audi tt commercial the
advertising agency conducted
copy right infringement and
therefore he should get all the
profits of the advertising agency
for that commercial and all the
profits of the Audi tt’s sold
during the five month period the
commercial aired.
Jury
• The jury awarded Andreas 10% ($570.000) in profits from
Volkswagen. (During the five month period Volkswagen
earned $5.7 million on the sales of 5146 Audi tt’s.
• The jury also awarded Andreas profits form the advertising
agency in the amount of $280.000. (During that five month
period the agency earned $546.821 in profits and its fees from
Volkswagen were based on employee hours. However the
agency was unable to show how many hours were spent
working on the infringement commercial as opposed to the
other two commercials. Therefore the jury awarded one half is
profits as damages to Andreas)
District Court decision
• The district court granted Volkswagen’s motion for judgment as
a matter of law because it found that Andreas failed to prove
the causal connection between the infringement and the car
sales. Thereby reversing the jury’s award of profits.
Appeal to Eighth Circuit
• Both Andreas and the advertising agency appealed.
• Andreas argued that the district court erred when it granted
JAML to Volkswagen, reversing the jury’s award of profits.
The appellate court agreed and determined that Andreas
showed a sufficient nexus between the infringing commercial
and the profitable introduction of the TT Coupe using
circumstantial evidence. It reversed the district court’s grant
and reinstated the jury’s verdict.
• The agency argued that the district court erred when it awarded
Andreas one half its profits, because the infringing commercial
was only one of the three commercials it produced for Audi
TT. The damages should be limited to one-third. The Eighth
Circuit disagreed because the agency was not able to show
how many hours they spent on the different commercials.
The court proceedings can be found here:
http://www.ca8.uscourts.gov/opndir/03/07/022309P.pdf
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