United States District Court, M.D. Florida, Tampa Division
CHARLENE EDWARDS HONEYWELL UNITED STATES DISTRICT JUDGE
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.
BACKGROUND AND FACTS
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).
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.
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.
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.
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.
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.
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 ...