Anthony Dash v. Floyd Mayweather, Jr.

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.

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 May-weather’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 Mayweather’s entrance music at the time they entered into the contract.

At some point prior to Wrestlemania XXIV, the WWE communicated to May-weather 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 May-weather 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, *308in accordance with the RAW contract, Mayweather appeared as a live guest host 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 May-weather’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:

7. [Dash] has adduced no evidence that the playing of the “Yep” song at Wres-tlemania 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 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.

*309In 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 Ein-horn Report reviewed the WWE’s various profit streams attributable to Wrestlema-nia XXIV, calculated the value of May-weather’s appearance at that event relative to the net profits derived from the event, and 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 Ein-horn 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.

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 Wres-tlemania 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 *310claimed 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 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 Ein-horn 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 would not proceed to the liability phase, dismissed the pending discovery motions as moot, and directed that the ease 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 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 *311when “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 in-fringer 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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).

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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505). 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 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 *312else’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 and then to certain profit damages, but only to the extent such profit damages are not contemplated in the calculation of the plaintiffs 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 Wres-tlemania 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 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 must show that the thing taken had a fair market value.”6 Id. at 166.

*313Regardless 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 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 non-speculative 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 as “negotiatfed] 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 *314claim 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 Dash to provide non-speculative 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, 106 S.Ct. 1348). 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,” 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 Bailers 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 *315general 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:

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 commercially] released at any previous time.” Id. In summarizing his review of several WWE contracts, Dr. Ein-horn noted that he had “not viewed any licenses with terms that implicate comparable musical compositions used at Wres-tlemania” 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 Wres-tlemania 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 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.

*316After 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 “[tjhese 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 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, 106 S.Ct. 2505.

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 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 conclusion does not rebut Appellees’ properly sup*317ported 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. Ein-hom 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 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 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 sole*318ly 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. 1088). 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 Bailers 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 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 plaintiffs 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 his prior productions. Unlike in On Davis, there