In 2001, real estate developer Igor Olenicoff (worth an estimated $3.6 billion and one of the 500 wealthiest people in the world according to Forbes) approached artist John Raimondi about purchasing some of his sculptures for Olenicoff’s properties.  Raimondi , a well-known sculptor of steel and bronze,  provided Olenicoff with pictures, drawings, and prices for “Dian” and “Cere.”  Olenicoff passed, but as Raimondi later learned, Olenicoff instead had them copied in China.  

Raimondi discovered at least four versions of his sculptures were on display outside Olenicoff’s properties with plaques naming the artist as “Mao Tian” and sued Olenicoff.    Prior to trial, Olenicoff stipulated he was liable for copyright infringement, so the trial only concerned damages and  the jury returned an award of $640,000. 

Following the trial, Olenicoff filed a motion to set aside the verdict as against the weight of the evidence, and Raimondi filed a motion for a permanent injunction ordering the sculptures be torn down.   In upholding the verdict, the Court found the jury was properly instructed that the measure of damage to compensate the copyright owner was the reduction of the fair market value of the copyrighted work caused by the infringement.

The reduction of the fair market value of the copyrighted work is the amount a willing buyer would have been reasonably required to pay a willing seller at the time of the infringement for the actual use made by the defendant of the plaintiff’s work. That amount also could be represented by the lost license fees the plaintiff would have received for the defendant’s unauthorized use of the plaintiff’s work.  A license price is typically established through objective evidence of benchmark transactions.  The jury was presented with a history of past sales they could have used to arrive at a hypothetical transaction for the sculptures in 2010, and Raimondi testified to three transactions where he authorized parties to reproduce his sculptures in exchange for an amount of money equal to his typical profit from selling finished sculptures.

The judge also dismissed Raimondi’s motion for the works to be destroyed, stating that Raimondi has already been compensated for the ongoing rights to display the sculptures, but ordered that the sculptures should now be properly attributed. 

Thanks to Betsy Silverstine for her contribution to this post and please write to Mike Bono for more information.