Universal City Studios Incorporated and Others v Gerard Mulligan (No. 3)

• Jurisdiction: Ireland
• Judgment Date: 18 May 1999
• Date: 18 May 1999
• Docket Number: [1994 No. 2908P]
• Court: High Court

Universal City Studios Incorporated v. Mulligan (No. 3)

Universal City Studios Incorporated, Walt Disney Productions Incorporated, 20th Century Fox Film Corporation and Warner Brothers Incorporated

Plaintiffs

and

Gerard Mulligan, Defendant (No. 3)

[1994 No. 2908P]

High Court

Damages - Breach of copyright - Inquiry as to damages and account of profits - Whether possible to calculate damages and loss of profits - Whether appropriate to award penal damages - Copyright Act, 1963 (No. 10), s. 22(4).

The plaintiffs, motion picture companies, alleged that the defendant had made and sold pirated video tapes of films in which they owned the copyright in breach of Part III of the Copyright Act, 1963. The High Court (Laffoy J.) held for the plaintiffs and granted a perpetual injunction against the defendant and ordered an inquiry into damages (see [1999] 3 I.R. 392).

At the hearing of the said inquiry, the plaintiffs suggested various methods of calculating the their damages based on the average wholesale price of a video for rental and the sale "sale thru" price of a video.

Held by the High Court (Laffoy J.), in awarding additional damages, 1, that having regard to the inherent difficulty in assessing actual loss in breach of copyright cases, it was not possible on the evidence before the court to properly calculate the actual loss suffered by the plaintiffs, individually or as a group.

2. That s. 22(4) of the Copyright Act, 1963, provided for the imposition of additional damages. Such damages which were penal in nature and were awarded at the discretion of the court, were an appropriate extra remedy in this case.

Folens v. Ó Dubhghaill ó dubhghaill [1973] I.R. 255 applied.

Cases mentioned in this report:-

Columbia Pictures Industries v. Robinson [1988] F.S.R. 531.

Folens v. Ó Dubhghaill ó dubhghaill [1973] I.R. 255.

Plenary summons.

The facts are summarised in the headnote and are fully set out in the judgment of Laffoy J. infra.

The action was commenced by plenary summons dated the 13th May, 1994. The High Court (Laffoy J.) gave judgment on the matter of whether a videotape was a cinematograph on the 28th November 1997 (see [1999] 3 I.R. 381). Her decision on whether the defendant had infringed the plaintiffs' copyright was given on the 25th March, 1998 (see [1999] 3 I.R. 392).

An inquiry into damages was heard on the 21st April, 1999.

Cur. adv. vult.

Laffoy J. 18th May, 1999

In my judgment in these proceedings delivered on the 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 five occasions between February, 1997, and November, 1997. On the basis of that finding, I granted a perpetual injunction in the terms...