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Yellowpages Photos, Inc. v. YP, LLC

United States District Court, M.D. Florida, Tampa Division

November 14, 2019

YP, LLC and PRINT MEDIA LLC, Defendants.



         This matter comes before the Court upon Defendants' Daubert Motion to Exclude Testimony of Joseph J. Brown (Doc. 118), and Plaintiff's response thereto (Doc. 134). In the motion, Defendants argue that Brown's expert opinion should be excluded because it is not based on sufficient facts or data and is not the product of reliable principles and methods. Doc. 118. Plaintiff responds that Brown is a qualified expert whose opinion is based on his experience and review of Defendants' advertisements containing Plaintiff's images. Doc. 134. The Court, having considered the motion and being fully advised in the premises, will grant Defendants' Daubert Motion to Exclude Testimony of Joseph J. Brown.


         Plaintiff Yellowpages Photos, Inc. (“YPPI” or “Plaintiff”) filed this action against Defendants YP, LLC, d/b/a “The Real Yellow Pages” (“YP”), and Print Media, LLC, d/b/a Print Media Solutions, LLC (“Print Media”) (collectively, “Defendants”), alleging that Defendants infringed on YPPI's copyrights, and requesting that as part of YPPI's damages that Defendants be required to disgorge all profits they derived from their infringement of YPPI's images. Doc. 45 ¶¶ 36(c), 48(c).

         To support its claim for profits, YPPI retained Joseph J. Brown (“Brown”) to provide opinions regarding whether revenue received from the sale of advertisements containing one or more of YPPI's copyrighted images is reasonably related to the use of the YPPI copyrighted images. Doc. 118-2 at 2. Brown is the principal of a graphic design firm specializing in yellow page advertising, production, billing, data management, and pagination software. Id. at 5. Brown has worked for and on behalf of small publishers and large independent yellow page publishers. Id. In forming his opinion in this case, Brown reviewed “samples of advertisements that appeared in YP-branded yellow page directories, which ads contain one or more of YPPI's copyrighted images.” Id. at 2.

         In his expert report, Brown explained that the yellow page industry considers the R.A.S.C.I.L. factors in creating advertisements. Id. These letters stand for Reliability, Authorized Products and Services, Special Features, Completeness of Service, Illustrations and Photos, and Location. Id. at 2-3. The reliability factor concerns connecting a business's history and associations in a way that inspires consumer confidence. Id. at 2. The authorized products and services factor relates to providing written content that highlights brands, products, and services that are offered by the business being advertised. Id. The special features factor stands for highlighting the products, services, or practices that make the business being advertised unique amongst its competitors. Id. at 3. The completeness of service factor relates to answering questions about payment types accepted, business hours, consultation information, and anything else that might be important to consumers. Id. The illustration and photos factor relates to creating impact and visually telling a story about the business and what it sells. Id. The final factor, location, relates to addresses, directions, websites, phone numbers, e-mail addresses, and other information that helps customers find or contact the business being advertised. Id.

         Brown's report focuses on the illustrations and photos factor. Id. Brown states that advertisers value using images because photos and illustrations “give an ad the opportunity to create interest, show off products, demonstrate services, and convey emotions that can be seen with just a quick glance by a browsing user.” Id. Brown indicates that “[w]ithout images, an ad is not useless, but it is certainly disadvantaged by competing ads with supporting illustrations and photos found in the same heading.” Id.

         Brown explains that “[g]ood print advertising always tells a story and just like a children's book, it would be boring without imagery.” Id. Customers do not want to read lengthy advertisements, especially where an image can quickly convey the information for which he or she is searching. Id. Brown uses the example of a customer seeing an image depicting plumbing services when searching for a plumber in the midst of a plumbing emergency. Id. A customer can quickly see the image without reading lengthy advertisements in search of his or her needs. Id. Brown opines that images sell advertisements. Id.

         With respect to the case at hand, Brown opines that “[b]ased on the advertisements presented showing the inclusion of YPPI's photographs, [he could] state without a doubt, that th[e images] played a key supporting role in the overall ad composition and assisted in telling the story behind products and services offered by the advertiser.” Id. He supports this conclusion based on “the customer's approval of the ad proof, ” in which Defendants' customers-the advertising companies-“certifie[d] that the advertisements presented would serve to promote their company in a way that is in-line with their business practices, offerings and identity.” Id. In Brown's experience, even where the customer already signed an advertising contract, the customer is always promised “an ad proof where [the] customer has a chance to approve an ad's design and content or even cancel if [the customer] feel[s] it d[id] not represent their business.” Id. Ultimately, Brown opined that “the use of YPPI's images in the advertisements is related to the revenue that Defendants received from their customers for Defendants' publication of the advertisements.” Id. at 4.


         The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence ...

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