Jarvis v. a & M RECORDS

*286 OPINION

This matter comes before the court upon the following motions by defendants: (1) motion to strike the certifications submitted by plaintiffs attorney Sheila Beckett in opposition to defendants’ substantive motions; (2) summary judgment on plaintiffs federal copyright of musical composition claim; (3) partial summary judgment on damages relating to plaintiffs federal copyright claim; (4) summary judgment dismissing defendant Seduction from the case; (5) summary judgment on plaintiffs federal sound recording claim; (6) partial summary judgment on plaintiffs state law claims.

For the reasons detailed, defendants’ motions are granted in part and denied in part.

I. Undisputed factual background

The facts of this case are undisputed and relatively simple. About a decade ago, Boyd Jarvis wrote a song entitled “The Music’s Got Me.” He recorded the song with his group, Visual, and copyrighted the composition together with the arrangement in November 1982. The song subsequently was released on Prelude Records, and the undisputed evidence shows that Prelude Records retains the copyright to the sound recording.

In 1989, defendant Robert Clivilles and David Cole wrote and recorded a song entitled “Get Dumb! (Free Your Body)” and the song was released in three formats on A & M Records and Vendetta Records, A & M’s subsidiary label. The three relevant versions are: (1) “Get Dumb! Free Your Body” as it appears on the “b” side of a single record called “Heartbeat” by the defendant group Seduction; (2) a trio of versions of “Get Dumb! Free Your Body” that appear on another 12” single by Cole/Clivilles Music Enterprises, recorded by a group called The Crew (featuring Freedom Williams); (3) the cassette single the song “Get Dumb!”

In all three of the releases of “Get Dumb!”, defendants digitally sampled sections of Mr. Jarvis’s “The Music’s Got Me.” Digital sampling has been described as:

the conversion of analog sound waves into a digital code. The digital code that describes the sampled music ... can then be reused, manipulated or combined with other digitalized or recorded sounds using a machine with digital data processing capabilities, such as a ... computerized synthesizer.

Judith Greenberg Finell, How a Musicologist Views Digital Sampling Issues, N.Y.L. J. p. 5 n. 3 (May 22, 1992). Thus, digital sampling is similar to taping the original composition and reusing it in another context. In this case, then, throughout the defendants’ songs, one occasionally hears an actual piece of “The Music’s Got Me.”

In 1990, Mr. Jarvis sued the defendants for copyright infringement. Defendants now move for summary judgment, on a variety of grounds. I will address these as they become relevant.

II. Submitted Affidavits

As an initial matter, defendants move to strike the certifications of Sheila Beckett, plaintiffs attorney. Defendants contend that Ms. Beckett’s certification may not be considered because a counsel’s statement is not evidence and cannot create an issue of fact. Moreover, defendants contend that since the certifications are not based on personal knowledge, they cannot be used to create an issue of material fact and must be stricken.

Federal Rule of Civil Procedure 56(e) provides that in opposing a motion for summary judgment, “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Rule 27 of the United States District Court Rules for the District of New Jersey further provides that:

Affidavits shall be restricted to statements of fact within the personal knowledge of the affiant. Argument of the facts and the law shall not be contained in affidavits. Legal arguments and summations in affidavits will be disregarded by the court and may subject the affiant to appropriate censure, sanctions or both.

*287 There is no question that Ms. Beckett’s submissions fall far short of the standard required by the federal and local rules. Her certification and brief are filled with unsupported factual allegations; her affidavit is replete with legal arguments.

But defendants’ motion contains a certain element of “pot calling the kettle black” syndrome. The affidavit submitted on behalf of defendant Robert Clivilles, for example, is not exactly a model of compliance with the applicable procedural rules. First, Mr. Clivilles’ affidavit states that, “[n]one of [the allegedly infringing portions of our work] were qualitatively significant to Jarvis’ song as they were used in solely a peripheral, offhand way having no relationship to the central features of that work.” (emphasis added). This statement is either a conclusory legal opinion or an argument based on the facts; it is certainly not a fact within the affiant’s personal knowledge. Second, Mr. Clivilles states that “[t]he ‘oohs’ and the ‘moves’ and the words ‘free your body’ [portions taken plaintiffs song] are truly incidental portions of our recording used almost as background sound effects rather than an integral portion of the composition.” This is not only a legal argument based on the facts, but the argument relies on a legally incorrect proposition. As defendants’ counsel well knows, the test for substantial similarity is the reaction of a lay ear, not the reaction of the alleged infringer.

Third, Mr. Clivilles states that “[t]he assertion that we have somehow injured Mr. Jarvis’ career is patently absurd.” This also is not a fact based on Mr. Clivilles’ personal knowledge but a legal conclusion concerning the amount of damages suffered by Mr. Jarvis as a result of defendants’ actions. Finally, and even more irresponsibly, Mr. Clivilles states that “it is hard to believe that [a re-release of Mr. Jarvis’ recording] would be successful.” Such a statement should not be included in an affidavit purportedly stating facts within the affiant’s personal knowledge.

Additionally, Jonathan Blank’s affidavit submitted on behalf of defendants concludes with the statement: “[Defendant Seduction’s] only connection is that they performed the versions of the ‘Heartbeat’ song recorded on the Heartbeat 12” single and were mistakenly included by plaintiff’s counsel as defendant in this action. ” (emphasis added). When plaintiff’s counsel has kept Seduction in the ease for the past three years, it is difficult to see how Mr. Blanks would have personal knowledge of her intention in naming Seduction as a defendant.

In short, there is enough blame to go around. 1

My solution is as follows: with regard to all of the submitted affidavits, I will consider only those portions containing facts based on the affiant’s personal knowledge. All legal arguments, arguments based on facts and statements outside the respective affiant’s personal knowledge will be disregarded.

I now turn to the summary judgment motions.

III. Summary Judgment Motions

A. Standard for Summary Judgment

Federal Rule of Civil Procedure 56 provides that summary judgment may be granted only if the pleadings, supporting papers, affidavits, and admissions on file, when viewed with all inferences in favor of the nonmoving party, demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. See also Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir.1989); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.1987), cert. dism’d, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). Put differently, “summary judgment may be granted if the movant shows that there exists no genuine issues of material fact that would permit a reasonable jury to find for the nonmoving party.” Miller v. Indiana Hospital, 843 F.2d 139, 143 (3d Cir.), cert. denied, 488 U.S. 870, 109 S.Ct. 178, 102 L.Ed.2d 147 (1988). An issue is “genuine” if a reasonable jury could possibly hold in the nonmovant’s favor with regard to that issue. See Anderson v. Liberty *288 Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). A fact is material if it influences the outcome under the governing law. Id. at 248, 106 S.Ct. at 2510.

Within the framework set out above, the moving party essentially bears two burdens: First, there is the burden of production, of making a prima facie showing that it is entitled to summary judgment. This may be done either by demonstrating there is no genuine issue of fact and that as a matter of law, the moving party must prevail or by demonstrating the nonmoving party has not shown facts relating to an essential element of the issue for which it bears the burden. Once either showing is made, this burden shifts to the nonmoving party who must demonstrate facts supporting each element for which it bears the burden as well as establish the existence of genuine issues of material fact. Second, there is the burden of persuasion. This burden is a stringent one which always remains with the moving party. If there remains any doubt as to whether a trial is necessary, summary judgment should not be granted. See Celotex Corp. v. Catrett, 477 U.S. 317, 330-33, 106 S.Ct. 2548, 2556-58, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-61, 90 S.Ct. 1598, 1608-10, 26 L.Ed.2d 142 (1970); Advisory Committee’s Notes on Fed. Rule of Civ.Pro. 56(e), 1963 Amendment; see generally C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2727 (2d ed. 1983).

B. Plaintiffs musical composition copyright claim

The federal aspects of this case are governed by the Federal Copyright Act of 1976. Section 106 of the Copyright Act provides that:

Subject to sections 107 through 118, the owner of copyright under this title has exclusive rights to do and authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer or ownership....

To prove copyright infringement, the plaintiff must establish that he or she owns a valid copyright, that the defendants copied a protectible expression, and that the copying is substantial enough to constitute improper appropriation of plaintiffs work. See Hofmann v. Pressman Toy Corp., 790 F.Supp. 498, 505 (D.N.J.1990) (Debevoise, D.J.), aff'd 947 F.2d 935 (3d Cir.1991), cert. denied — U.S. -, 112 S.Ct. 1569, 118 L.Ed.2d 214 (1992); see also Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.1975), cert. denied 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975) (“[t]o establish a copyright infringement, the holder must first prove that the defendant has copied the protected work and, second, that there is a substantial similarity between the two works.”); Ford Motor Company v. Summit Products, Inc., 930 F.2d 277, 290 (3d Cir.), cert. denied — U.S. -, 112 S.Ct. 373, 116 L.Ed.2d 324 (1991) (“[c]opyright infringement is established if the plaintiff proves that it owned the copyrighted material and that the copyrighted material was copied by the defendant.”) 2

*289 A plaintiff may establish a prima facie case that he or she owns the relevant copyright by presenting a certificate of registration by the United States Copyright Office. Ford Motor Company at 291. In this case, plaintiff has produced such a certificate and it is undisputed that he owns the copyright of the musical composition.

The second question, then, is whether defendant has copied the plaintiffs work without authorization. Normally, a defendant denies copying the plaintiffs work or contends that there was authorization. In such circumstances, where direct evidence of copying is unavailable, copying can still be proved “inferentially by showing that the defendant had access to the allegedly infringed copyrighted work and that the allegedly infringing work is substantially similar to the copyrighted work.” Whelan Associates v. Jaslow Dental Laboratory, 797 F.2d 1222, 1232 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987). The instant ease is one of those rare cases in which such indirect proof is not necessary. In this ease, the defendants actually took a sample of plaintiffs recording and incorporated into their recordings. Indeed, they admit as much and admit, that it was without authorization. Generally — assuming that illegal appropriation is shown — “[i]f a defendant admits to using copyrighted material, that alone would make the defendant liable for copyright-infringement, absent the owner’s authorization.” Major League Baseball Promotion v. Colour-Tex, 729 F.Supp. 1035, 1039 (D.N.J.1990) (Gerry, C.J.). (citing Fitzgerald Publishing Company v. Baylor Publishing Co., 807 F.2d 1110, 1113 (2d Cir.1986)).

Thus, in this case, there clearly was a copying. See Nimmer on Copyright, § 13:03 at 13-2

The final question is whether the copying amounted to an unlawful appropriation.

This is a case of what Professor Nimmer has termed “fragmented literal similarity”, see Nimmer on Copyright, § 13.03[A][2] at 13 — 46, that is, there is literal verbatim similarity between plaintiffs and defendants’ works. In fact, the copied parts could not be more similar — they were digitally copied from plaintiffs recording. Two parts from plaintiffs song were copied: First, the bridge section, which contains the words “ooh ... move ... free your body”, was taken. Second, a distinctive keyboard riff, which functions as both a rhythm and melody, included in the last several minutes of plaintiffs song, were also sampled and incorporated into defendants’ work. 3

*290 As courts and commentators have repeatedly noted, the test for substantial similarity is difficult to define and vague to apply, see Nimmer, § 13.03[A] at 13-27 (citing cases); Universal Athletic at 907 (“most eases are decided on an ad hoc basis”); Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960) (“[t]he test for infringement of a copyright is of necessity vague”). Nonetheless, it is repeatedly said that the test to determine substantial similarity is the response of the ordinary lay person. Universal Athletic at 907 (citing Arnstein v. Porter, 154 F.2d 464 (2d Cir.1946)).

Defendants build on the premise of the lay audience test by arguing that only if the two songs are similar in their entirety should the defendant’s song be held to have infringed plaintiffs song. Indeed, defendants cite apparent authority for this proposition. In a case decided a half-century ago, a court, in rejecting the plaintiffs argument of infringement, stated that “I have heard the compositions played, and to my ear there is a similarity, but not such a similarity as would impress one. In other words, I would not take the one for the other.” Allen v. Walt Disney Productions, Ltd., 41 F.Supp. 134, 140 (S.D.N.Y.1941) (emphasis added). Similarly, the district judge in Arnstein v. BMI, Inc., 46 F.Supp. 379 (S.D.N.Y.1942) wrote that “[infringement must be founded upon more than the adoption of a few measures here and there. The theme and general melody must be substantially lifted.” Id. at 381. Moreover, the defendants cite an influential article by Jeffrey Sherman:

A defendant should not be held liable for infringement unless he copied a substantial portion of the complaining work and there exists the sort of aural similarity between the two works that a lay audience would detect. As to the first requirement, the portion copied may be either qualitatively or quantitatively substantial. As to the second, the two pieces must be similar enough to sound similar to a lay audience, since only then is it reasonable to suppose that the performance or publication of the accused work could in any injure the rights of the plaintiff composer.

J. Sherman, Musical Copyright Infringement: The Requirement of Substantial Similarity, Common Law Symposium, No. 92, ASCAP, p. 145 (1977).

However, defendants misconstrue the scope of the examination, at least in the context of fragmented literal similarity, where there unquestionably is copying, albeit of only a portion of plaintiffs song. If it really were true that for infringement to follow a listener must have to confuse one work for the other, a work could be immune from infringement so long as the infringing work reaches a substantially different audience than the infringed work. In such a situation, a rap song, for instance, could never be held to have infringed an easy listening song or a pop song. See, e.g. Grand Upright Music, Ltd. v. Warner Brothers Records, Inc., 780 F.Supp. 182 (S.D.N.Y.1991) (discussed infra) (finding that rap song infringed easy listening song).

Moreover, defendants’ test, applied in cases of fragmented literal similarity, would eviscerate the qualitative/quantitative analysis, which revolves around the premise that a party may be held liable when he or she appropriates a large section or a qualitatively important section of plaintiffs work, see Werlin v. Readers Digest Association, 528 F.Supp. 451, 463 (S.D.N.Y.1981) (Ward, D.J.).

Finally, such a strict test would seem to go counter to another general principle — that the relevant question in copyright infringement cases is whether the segment in question constituted a substantial portion of the plaintiffs work, not whether it constituted a substantial portion of the defendant’s work. See Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 614 (7th Cir.), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 145 (1982) (“the test is whether the accused work is so similar to the plaintiffs work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiffs protec- *291 tibie expression by taking material of substance and value”).

Thus, infringement based on fragmented literal similarity depends on the truth of the principle that “the value of a work may be substantially diminished even when only a part of it is copied, if the part that is copied is of great qualitative importance to the work as a whole.” Werlin at 463.

A recent fragmented literal similarity case decided by Judge Duffy in the Southern District of New York illustrates the point. In that case, the court faced an issue similar to the one before this court today. A rap artist had digitally sampled a portion of a twenty-year old pop song, “Alone Again (Naturally)” and used it as background throughout the rap song, “Alone Again”. The appropriated portion consisted of a short keyboard riff in the introduction of the original song. The two songs were utterly unlike and reached completely different markets. Certainly nobody would have confused the songs. Few would have bought the rap song because it contained a portion of the original song. Nonetheless, Judge Duffy found infringement. Grand Upright Music Ltd. v. Warner Brothers Records, Inc., 780 F.Supp. 182 (S.D.N.Y.1991) (Duffy, D.J.). The reason lies in the nature of holding defendants liable on a theory of fragmented literal similarity. The proper question to ask is whether the defendant appropriated, either quantitatively or qualitatively, “constituent elements of the work that are original”, see Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 111 S.Ct. 1282, 113 L.Ed.2d 368 (1991) such that the copying rises to the level of an unlawful appropriation. As noted above, the question is whether the value of the original work is substantially diminished by the copying. See Werlin at 463.

I now turn to the songs at issue in this case.

Plaintiffs song begins with a rhythm and melody utterly unlike defendants’ songs. But halfway through the song, the tone changes as the verse-chorus repetition segues into a lengthy bridge. The bridge begins with a series of “oohs”, sung over a distinctive rhythm, changes into a series of “moves” and then culminates with vocal repetitions of the phrase “free your body.” A couple of minutes later in plaintiffs song, the tone again changes. This time, the song segues into a distinctive keyboard riff (musical phrase), that functions as both rhythm and melody, and for some time stays in the foreground of the song. It remains throughout the end of the song, as lyrics are sung over it.

Nonetheless, defendants argue that the vocal portions of plaintiffs song which defendants copied were non-copyrightable and therefore those portions must be factored out prior to performing the substantial similarity test.

Since it is not unlawful to copy non-copyrightable portions of a plaintiffs work, non-copyrightable elements must be factored out in an inquiry into infringement. See Warner Brothers v. American Broadcasting Companies, 720 F.2d 231, 240 (2d Cir.1983) (“a court may determine non-infringement as a matter of law on a motion for summary judgment ... [when] the similarity between two works concerns only non-copyrightable elements of the plaintiffs work_”). The policy behind the rule is to prevent a deterring effect on the creation of new works because of authors’ fears of copying innocuous segments. Warner Brothers at 240. 4

There is no easily codified standard to govern whether the plaintiffs material is sufficiently original and/or novel to be copyrightable. “Cliched language, phrases and expressions conveying an idea that is typically expressed in a limited number of stereotypic fashions, are not subject to copyright protection.” Perma Greetings 598 F.Supp. at 448. Easily arrived at phrases and chord progressions are usually non copyrightable, see William F. Patry, Latman’s The Copyright Law 65 (6th Edition 1987). Thus, in one case, a court held that defendant’s appropriation of the phrase “night and noon”, in a *292 song entirely different from plaintiffs song, was not copyright infringement. O’Brien v. Chappel & Co., 159 F.Supp. 58, 58 (S.D.N.Y.1958) (Dawson, D.J.). In another ease, a court held that when plaintiffs and defendant’s mug coasters referenced ideas of enjoyment, a drinking mug, friendship, sunshine, and flowers, the plaintiffs ideas were unprotected.

However, if a piece is sufficiently distinctive, it is copyrightable.

This case bears no relationship to the cases cited above. It is unfair to characterize the “oohs”, “moves” and “free your body” as cliched phrases typical in the field. To the contrary, they are used together in a particular arrangement and in the context of a particular melody. And the precise relationship of the phrases vis a vis each other was copied. There is no question that the combined phrase “ooh ooh ooh ooh ... move ... free your body” is an expression of an idea that was copyrightable. Moreover, the keyboard line that was copied represents a distinctive melody/rhythm that sets it far apart from the ordinary cliched phrases held not copyrightable. It, too, is an expression of an idea, and is capable of being infringed. Again, the fact that defendants appropriated the exact arrangement of plaintiffs composition says more than what can be captured in abstract legal analysis.

It is certainly not clear as a matter of law that the portions copied from plaintiffs song were insignificant to plaintiffs song. To the contrary, the “oohs” and “move, free your body” occur in a bridge that attempts to be distinct and attention-grabbing. The keyboard riff begins the final portion of plaintiffs song, setting the rhythm as well as the melody.

Therefore, because resolution of this question involves factfinding, I will deny defendant’s motion for summary judgment as to liability on plaintiffs musical composition copyright claim.

C. Plaintiffs sound recording claim

Defendants move for summary judgment on plaintiffs sound recording claim. Under the Copyright Act, there is a well-established distinction between sound recordings and musical compositions, see Patry at 209. The Copyright Act defines sound recordings as:

works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords in which they are embodied.

17 U.S.C. § 101. Pursuant to this distinction, “the rights of a copyright in a sound recording do not extend to the song itself’, see T.B. Harms Co. v. Jem Records, Inc., 655 F.Supp. 1575, 1577 n. 1 (D.N.J.1987) (Bissell, D.J.), and vice versa.

As noted above, in order to state a claim of copyright infringement, the plaintiff must first establish that he or she is the owner of the copyright. A certificate of copyright registration is prima facie evidence of copyright ownership. In this case, the certificate of registration states that Prelude Records, Inc. is the author and owner of the sound recording. Plaintiff responds by accusing Prelude Records of fraud. However, “[c]opyright protection for a sound recording of musical compositions must be denied if the copyright claimant of the sound recording has not lawfully obtained the rights to utilize the musical compositions in the sound recordings” Pamfiloff v. Giant Records, Inc., 794 F.Supp. 933, 938 (N.D.Cal.1992) (Peekham, D.J.). In this case, though, plaintiff does not appear to contest that Prelude Records lawfully used the sound recording. Plaintiff only seems to argue that he was promised royalties from the sound recording, and that Prelude did not have permission to copyright the sound recording. But a reading of Mr. Jarvis’s deposition testimony reveals only that he is not clear what the situation is with the sound recording.

At any rate, defendants are correct in noting that plaintiff has not obtained testimony from officials of Prelude Records, or copies of alleged contracts detailing an alleged agreement between plaintiff and Prelude Records.

*293 Thus, there is nothing in the record to disprove defendant’s prima facie showing of ownership of the copyright in the sound recording.

Thus, I must grant summary judgment on this claim. The question of how this relates to the apportionment of damages will be discussed below.

D. Damages Claim

Next, defendants move for partial summary judgment dismissing plaintiffs damages claims. The copyright act provides recovery for either actual damages plus defendant’s profits or statutory damages, at the plaintiffs election. Defendants contend that Mr. Jarvis has elected a recovery of actual damages. However, the act clearly allows a plaintiff to elect up to and until the time of judgment. Thus, I cannot agree with defendant’s contention that plaintiff has conclusively elected his damages.

Nonetheless, since summary judgment disposing of damages claims is appropriate if there are no disputed facts and defendant is entitled to judgment as a matter of law, see McGlinchy v. Shell Chemical Company, 845 F.2d 802, 808-09 (9th Cir.1988), I will address defendants’ motion regarding plaintiffs claim of actual damages and defendants’ profits.

In this case, plaintiff claims the following damages: (1) the amount he would have made had he re-released his version of “The Music’s Got Me;” (2) defendants’ income derived from every performance of their infringing compositions, including a percentage of the defendants’ advance; (3) a projected profit amount that defendants’ copies would have earned had they remained on the market for a 3-year period, projected from the initial sales period; (4) punitive damages.

I will first assess actual damages and then address lost profits.

1. Actual Damages

Actual damages is measured by the “extent to which the market value of the copyrighted work at the time of infringement has been injured or destroyed by such infringement.” Nimmer at 14-8. Because market value of the composition is difficult to quantify, damages are often defined to equal the profits which plaintiff would have accrued but for the defendant’s infringement. Big Seven Music Corporation v. Lennon, 554 F.2d 504 (2d Cir.1977). It is the plaintiffs burden to establish “the existence of a causal connection between the infringement of the defendant and some loss of anticipated revenue.” Key West Hand Print Fabrics, Inc. v. Serbin, Inc., 269 F.Supp. 605, 613 (S.D.Fla.1965). If plaintiff fails to meet this burden, damages may be denied as too speculative as a matter of law, see, e.g. Morgan Creek Productions, Inc. v. Capital Cities/ABC Inc., 22 U.S.P.Q.2d 1881, 1893, 1991 WL 352619 (C.D.Cal.1991) (Lew, D.J.) (disposing as too speculative plaintiffs lost opportunity claim); see also Nimmer at 14-11.

In this case, plaintiff has utterly failed to meet his burden in showing damages. In his deposition, plaintiff stated that he has been damaged by $15 million. He further stated that “it’s not excessive, any kind of money. It’s just I have been damaged. What it’s worth, that’s up to the courts to decide, what it’s worth or, you know.” While knowledge of the intricacies of the law cannot be imputed to a lay plaintiff, the entire deposition of Mr. Jarvis conveys an air of unfamiliarity and unconcern with any notion of actual, quantifiable damages. For instance, the deposition reveals that after the initial Prelude release of plaintiffs song, there were two re-releases. It appears, though, that plaintiff made no attempt to take discovery or subpoena records on the sales of the re-releases. Plaintiffs testimony that he was attempting to re-mix “The Music’s Got Me” when the infringement occurred and that he therefore missed opportunities for advancement, consists of the following:

Q: Did you have any discussions with anybody about a rerelease of “The Music Got Me”?

A: No, because I planned on remixing it myself and rereleasing it. I have the multi-track and I was actually working on remix.

Q: When was this?

*294 A: This was — when did we start that? I can’t remember. Somewhere, it was, had to be like the winter, somewhere around January, I forget. I really can’t say a month, but we were actually in the studio ..'. remixing it.

Q: Which year was this?

A: This was ’90

Q: Had you—

A: It had been thought about anyway. We had been thinking about it for a long time. We just decided to start to do it. Q: When did you start to think about remixing it?

A: Since ’86, ’87, thinking about it.

Q: Did you have any discussions about what impact the [rerelease] would have, if any, on the market for a remix?....

A: No, not really....

Q: Have you had any discussions about [the infringing song’s influence on the market for a re-reléase of “The Music Got Me”] with anybody in the business?

A: About what?

Q: About whether or not the release of “Get Dumb For [sic] Your Body” has had any impact on your ability to release a remix of “The Music Got Me.”

A: No, I haven’t really discussed it.

In short, there is simply no evidence to support plaintiffs lost opportunities claim.

Thus, plaintiff has demonstrated no actual damages. 5

Still, the plaintiff would be entitled to defendants’ profits.

2. Defendants’ profits

Under the Copyright Act, a plaintiff is further entitled to receive defendant’s profits that were the result of the infringement. To establish profits, plaintiff is only required to present evidence of the defendants’ gross profits. The parties have stipulated to the following gross profits, arising out of the various infringing songs. 6 :

(i) “Get Dumb” as included on Seduction/Heartbeat record: $270,451

(ii) “Get Dumb (Free Your Body)”: $77,-815

(iii) “Get Dumb”: $14,269

Out of this amount, defendants are entitled to deduct expenses, provided that they establish that the expenses relate to the infringing work. Allen-Myland v. International Business Machines, 770 F.Supp. 1014 (E.D.Pa.1991). Defendants may, for example, deduct manufacturing costs and packaging costs. Dolori Fabrics, Inc. v. Limited, Inc., 662 F.Supp. 1347, 1356, 1357 (S.D.N.Y.1987) (Lumbard, C.J.). Even overhead may be deducted, provided that the defendant’s violation of plaintiffs copyright was not willful, see Allen-Myland at 1025. However, if defendant’s conduct is willful, overhead may not be deducted. Moreover, charge-backs, or returned copies of sold records, are not deductible. See Nimmer at 14-30; Dolori Fabrics at 1356.

Defendant has submitted an affidavit from Milton E. Olin, Jr., Senior Vice President of Business and Legal Affairs for defendant A & M Records. He appears-competent to testify about the expenses incurred in connection with the releases of the allegedly infringing songs, and has attached a schedule of deductions, submittable as a summary of voluminous records pursuant to Fed.R.Evid. 1006. Plaintiff has not disputed any of the figures.

*295 The following figures are clearly deductible as a matter of law:

(1) sales discounts, referring to various trade discounts given to vendors to provide incentive to stock A & M records;

(2) distribution fees, referring to the monthly charge assessed on A & M for distributing and warehousing A & M products;

(3) manufacturing, packaging and artwork costs;

(4) recording costs;

(5) promotion and marketing costs spent to advertise and promote the recordings.

The following expenses are not clearly allowable as a matter of law, and thus cannot be awarded to defendants on a summary judgment motion:

(1) records sold and then returned, see Dolori, supra;

(2) artist and mechanical royalties. While royalties may be generally deductible, see Smith v. Little, Brown & Company,