Universal City Studios Incorporated and Others v Mulligan

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 18 May 1999
• Neutral Citation: [1999] IEHC 165
• Docket Number: No. 2908 P 1994
• Court: High Court
• Date: 18 May 1999

[1999] IEHC 165

THE HIGH COURT

No. 2908 P 1994

UNIVERSAL CITY STUDIOS INCORPORATED & ORS v. MULLIGAN

BETWEEN

UNIVERSAL CITY STUDIOS INCORPORATED

DISNEY ENTERPRISES INC.

TWENTIETH CENTURY FOX FILM CORPORATION

WARNER BROTHERS INCORPORATED

PLAINTIFFS

AND

GERARD MULLIGAN

DEFENDANT

Citations:

CLARK & SMYTH INTELLECTUAL PROPERTY LAW IN IRELAND 330

COLUMBIA PICTURES V ROBINSON 1988 FSR 531

FOLENS V O'DUBHGHAILL 1973 IR 255

Synopsis

Damages

Assessment of damages; additional damages; intellectual property; copyright; infringement of plaintiffs” copyrights in motion pictures by sale from market stalls by defendant of counterfeit video cassettes; High Court had granted perpetual injuction restraining infringement; defendant not represented at inquiry as to damages; no evidence as to volume of sales of pirated copies; no evidence from which it could be deduced that activities of defendant had affected commercial success of any of plaintiffs” titles; High Court had indicated that case was appropriate for an award of additional penal damages under s.22(4) Copyright Act, 1963; quantum of damages.

Held: Plaintiffs awarded damages of £75,000 including £50,000 damages under s.22(4).

Universal City Studios Inc. v. Mulligan - High Court: Laffoy J. - 18/05/1999 - [1999] 3 IR 407

In an earlier judgment of 25 March 1999 Laffoy J had granted a perpetual injunction against the defendant restraining infringement of the copyright vested in the plaintiffs in relation to the production of counterfeit videos by the defendant. The plaintiffs had also sought a sum of damages and having been put on election the plaintiffs opted for an inquiry as to damages instead of an account of profits. Various methodologies had been put forward to assess the appropriate amount of damages. Laffoy J held that due to the difficulties present in estimating the loss the quantification of damages would be ‘at large’. In addition the flagrancy of the defendant’s behaviour would result in the award of a sum of additional damages, which were penal in nature, under section 22(4) of the Copyright Act, 1963. If required the plaintiffs also had the option of applying to the court for orders of attachment and committal. Laffoy J so held in awarding a sum of £75,000 damages, including £50,000 damages under section 22(4) of the Copyright Act, 1963.

Judgment of

Ms. Justice Laffoy

delivered on the 18th day of May, 1999

1 In my judgment in these proceedings delivered on 25th March, 1998. I found that the Defendant was in possession of and was dealing in counterfeit video cassettes in the knowledge that they were counterfeit and constituted an infringement of the copyright therein owned by various copyright owners, who are represented by the Plaintiffs, which video cassettes had been seized in seventeen seizures at various locations in Dublin City and County, County Wicklow, County Meath, County Cavan and County Monaghan between May 1992 and November 1997 and acquired as a result of "test purchases" in Dublin City on live occasions between February 1997 and November 1997. On the basis of that finding I granted a perpetual injunction in the terms sought by the Plaintiffs restraining infringement of the Plaintiffs” copyright in cinematograph films and pre-recorded video cassettes. In the proceedings, the Plaintiffs had sought, in addition to injunctive relief, an order directing an inquiry as to the damages to which they were entitled as a result of the Defendant's wrongdoing and also an account of all profits made by the Defendant in connection with the infringement of their copyright. Having been put to their election as to which of those remedies they wished to pursue, the Plaintiffs sought an inquiry as to damages. This judgment arises out of that inquiry, which was held on 21st April, 1999.

2 Between 25th March, 1998 and 21st April, 1999, the solicitor who had acted for the Defendant in the substantive hearing had come off record. The Defendant was not represented and did not appear on the inquiry as to damages.

3 The Plaintiffs” claim for damages has been presented on the basis that they are entitled to recover damages reflecting actual loss they have incurred and also in respect of the damage to the video industry and the undermining of the integrity of that market caused by the Defendant's involvement in video piracy.

4 Mr. Brian Finnegan, the Director General of INFACT, the Irish National Federation Against Copyright Theft, which is a non profit making subsidiary of the Motion Picture Industry Association of the United States, which represents 72 companies in the motion picture industry, testified on the inquiry. His approach to the calculation of the losses incurred by the Plaintiffs as a result of the copyright infringements on the part of the Defendant which had been found by the Court was as follows. He calculated that the total number of video cassettes seized or acquired in the seizures and test purchases was 2.687, which he calculated represented an...