Capture Eleven LLC v. Otter Products, LLC et al

OCR transcription for search; preserved printed pages are authoritative

Case No. 1:20-cv-02551-CNS-KAS Document 349 filed 04/09/25 USDC Colorado
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney

Civil Action No. 1:20-cv-02551-CNS-KAS
consolidated with 1:21-cv-O0068-CNS-KAS

THE CAPTURE ELEVEN GROUP, a California corporation,
Plaintiff/Counter-Defendant,

V.

OTTER PRODUCTS, LLC, a Colorado limited liability company,
Defendant/Counter-Claimant/Third-Party Plaintiff,

V.

VERITY HOSKINS PRODUCTION, INC.,

Third-Party Defendant.

ORDER

Before the Court are Plaintiff's Motion for Judgment as a Matter of Law Under
Federal Rule of Civil Procedure 50(b); Plaintiffs Contingent Motion for a New Trial Under
Federal Rule of Civil Procedure 59; Defendant Otter Products, LLC’s Renewed Motions
for Judgment as a Matter of Law Under Federal Rules of Civil Procedure 50(b) and 52(b);
and Plaintiffs Motion for Prejudgment and Post-judgment Interest. See ECF Nos. 327,

331, 333, 335, and 338.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

2
For the reasons set forth below, the Court DENIES Plaintiff’s Rule 50(b) and Rule
59 Motions; DENIES Defendant’s Rule 50(b) and Rule 52(b) Motions; and GRANTS
Plaintiff’s Motion for Prejudgment and Post-judgment Interest.
I. 	BACKGROUND
The Court presumes the parties’ familiarity with this case’s procedural and factual
backgrounds. Following the parties’ February 23, 2024, Trial Preparation Conference, this
case proceeded to a seven-day trial on March 4, 2024. See, e.g., ECF Nos. 282; 295–
307. The jury awarded Plaintiff over $3,114,000 in total damages. See ECF No. 309; ECF
No. 324. Judgment entered in Plaintiff’s favor on November 5, 2024. ECF No. 324. Post-
trial briefing, including the parties’ instant, fully briefed motions, followed. ECF Nos. 327,
331, 333, 335, and 338.
II. 	ANALYSIS
A. Plaintiff’s Rule 50(b) Motion
Plaintiff moves for judgment as a matter of law under Federal Rule of Civil
Procedure 50(b) because Defendant “failed to prove any apportionment” under 17 U.S.C.
§ 504(b), and therefore “a profit disgorgement award of $15.8 Million should be entered
in this action.” ECF No. 331 at 2; see also id. at 15 (seeking same relief “or in the
alternative [that the Court] order a new trial solely on profit disgorgement” (capitalization
omitted)). Defendant resists, arguing Rule 50(b) relief on this basis is improper. See
generally ECF No. 343. The Court agrees with Defendant. In analyzing Plaintiff’s motion,
the Court cites the motion filed under restriction but does so without citation to any
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restricted material. Compare ECF No. 331, with ECF No. 338 (public entry for restricted
document entry 331).
1. 	Legal Standard
Judgment as a matter of law under Rule 50 is appropriate only where evidence
“points but one way and is susceptible to no reasonable inferences which may support
the nonmoving party’s position.” Mountain Dudes v. Split Rock Holdings, Inc., 946 F.3d
1122, 1129 (10th Cir. 2019); see also Bill Barrett Corp. v. YMC Royalty Co., LP, 918 F.3d
760, 766 (10th Cir. 2019) (“A party is entitled to [judgment as a matter of law] only if the
court concludes that all of the evidence in the record reveals no legally sufficient
evidentiary basis for a claim under the controlling law.” (citations omitted)). In reviewing
a Rule 50 motion, courts draw all reasonable inferences “in favor of the nonmoving party”
and do not make “credibility determinations[,] weigh the evidence,” or “challenge the
factual conclusions of the jury.” Liberty Mut. Fire Ins. Co. v. Woolman, 913 F.3d 977, 983
(10th Cir. 2019) (quotations omitted); Webco Indus., Inc. v. Thermatool Corp., 278 F.3d
1120, 1128 (10th Cir. 2002) (asking whether jury verdicts are “supported by substantial
evidence” when record is viewed “most favorably to the prevailing party” (citation
omitted)). Judgment as a matter of law under Rule 50 is “cautiously and sparingly
granted,” and granted only when courts are certain that the evidence “conclusively favors
one party such that reasonable [people] could not arrive at a contrary verdict.” Mountain
Dudes, 946 F.3d at 1130 (citing Bill Barrett, 918 F.3d at 766).
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2. 	Analysis
The relief Plaintiff seeks appears consistent with Rule 50(b). Compare ECF No.
331 at 2, with Fed. R. Civ. P. 50(b). But the substance of Plaintiff’s Rule 50(b) Motion
belies this appearance.
As a preliminary matter, the Court must assure itself the subject of Plaintiff’s post-
verdict Rule 50(b) motion is the same as its pre-verdict Rule 50(a) motion. See Home
Loan Inv. Co. v. St. Paul Mercury Ins. Co., 827 F.3d 1256, 1266 (10th Cir. 2016) (“[A]
party may only pursue a ground for relief in a postverdict Rule 50(b) motion if that same
ground for relief was first asserted in a preverdict Rule 50(a) motion.” (citation omitted)).
The Court is not so quickly assured. Plaintiff contends it moved under Rule 50(a) “on
apportionment.” ECF No. 331 at 4. But in doing so during trial, Plaintiff made no mention
of Dr. Zeithammer’s testimony and its admissibility, as Plaintiff does now in its post-verdict
Rule 50(b) motion. Cf. ECF No. 317 at 172–73. Despite its concern that there’s too great
a mismatch between the premises of Plaintiff’s Rule 50(a) and Rule 50(b) motions, the
Court assumes Plaintiff may properly pursue its Rule 50(b) ground for relief—judgment
as a matter law in its favor on apportionment based on Dr. Zeithammer’s “inadmissible”
testimony, ECF No. 331 at 3—and proceeds in its merits analysis of Plaintiff’s Rule 50(b)
motion.
The 	gravamen 	of 	Plaintiff’s 	Rule 	50(b) 	Motion 	concerns 	the 	testimony 	of
Defendant’s expert, Dr. Zeithammer, who testified at trial—specifically, the admissibility
of Dr. Zeithammer’s testimony. See, e.g., ECF No. 331 at 3; ECF No. 317 at 10. According
to 	Plaintiff, 	“Dr. 	Zeithammer’s 	testimony 	and 	associated 	survey 	were 	unreliable,
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inadmissible evidence, admitted over [Plaintiff’s] Fed. R. Evid. 702 objections,” and
“should not have been admitted and [whose admission] was not harmless error.” ECF No.
331 at 3 (emphasis added); see also id. at 7 (“The Zeithammer survey and testimony are
inadmissible evidence.” (capitalization omitted)). Plaintiff recites a “host of reasons”
supporting 	exclusion 	in 	its 	Rule 	50(b) 	Motion, 	including, 	inter 	alia, 	errors 	in 	Dr.
Zeithammer’s survey sample selection, id. at 7, particularly as they relate to the “active
lifestyle” criteria; Dr. Zeithammer’s use of an “improper universe” because he “screened
out and excluded” all survey respondents who indicated they did not own an iPhone, id.
at 12; a “complete mismatch” in the demographics of “actual LifeProof customers” and
Dr. 	Zeithammer’s 	“sample 	demographics,” 	id.; 	and 	Dr. 	Zeithammer’s 	failure 	to
“adequately address implicit subconscious issues,” id. at 14 (capitalization omitted).
As 	Defendant 	correctly 	observes, 	these 	are 	arguments 	attendant 	to 	the
admissibility of expert testimony—not whether, pursuant to Rule 50(b), a party is entitled
to judgment as a matter of law where “evidence in the record reveals no legally sufficient
evidentiary basis for a claim under the controlling law.” Bill Barrett, 918 F.3d at 766
(citations omitted); see also ECF No. 343 at 8. Simply put, while styled as a Rule 50(b)
motion, Plaintiff actually seeks relief in the form of exclusion of Dr. Zeithammer’s expert
testimony, as confirmed by arguments in Plaintiff’s Reply: “[Plaintiff’s Motion] is based on
a previously raised, rejected and preserved Daubert motion and objection under [Rule]
702”; 	“Dr. 	Zeithammer’s 	survey 	and 	testimony 	should 	have 	been 	excluded.”
(capitalization omitted) (emphasis added). ECF No. 347 at 7–8; see also ECF No. 331 at
3 (emphasis added); id. at 7. And because Plaintiff tries to push a square peg—essentially
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post-trial exclusion of expert testimony, whose admissibility the Court already addressed
at the May 9, 2023, Final Pretrial Conference—into a round hole—Rule 50(b)’s well-
settled legal standard for granting judgment as a matter of law—Plaintiff has not shown
any entitlement to Rule 50(b) relief for the reasons set forth in its Motion. See, e.g.,
Versata Software, Inc. v. SAP Am., Inc., 717 F.3d 1255, 1264 (Fed. Cir. 2013); KAIST IP
US LLC v. Samsung Elecs. Co., 439 F. Supp. 3d 860, 877 (E.D. Tex. 2020).
Seeking support, Plaintiff turns to Weisgram v. Marley Company, 528 U.S. 440
(2000). See ECF No. 331 at 6. Weisgram, as Defendant observes, provides limited
support for Plaintiff’s position, and stands for the non-controversial proposition that “entry
of judgment as a matter of law extends to cases in which, on excision of testimony
erroneously admitted, there remains insufficient evidence to support the jury’s verdict.”
Id. at 457; see also Goodman v. Pennsylvania Tpk. Comm’n, 293 F.3d 655, 665 (3d Cir.
2002) (“Key to surviving a Rule 50 motion is a legally sufficient evidentiary basis for the
verdict.”). 	But 	presuming, 	as 	Plaintiff 	urges, 	Weisgram 	encourages 	the 	Court 	to
essentially review its evidentiary ruling regarding Dr. Zeithammer’s expert testimony
under the guise of Rule 50, the Court’s review does not yield Plaintiff’s sought-after Rule
50(b) relief.
First, the Court previously concluded, as noted above, during the parties’ May 9,
2023, Final Pretrial Conference that Dr. Zeithammer’s testimony was admissible at trial.
See ECF No. 283 at 5–7; see also ECF No. 252 at 9. At the Final Pretrial Conference,
the Court found, inter alia, Dr. Zeithammer’s methodology was not “suspect,” Plaintiff’s
sampling challenges were “unavailing,” and “to the extent [Dr. Zeithammer is] focusing on
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the active lifestyle, that seems to be what this case has been about from the beginning in
terms of what the marketing strategy that was employed here.” ECF No. 283 at 6–7. See
also Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (noting “the judge [must]
assess the reasoning and methodology underlying the expert’s opinion, and determine
whether it is both scientifically valid and applicable to a particular set of facts” (citation
omitted)).
The Court reiterated its conclusion regarding Dr. Zeithammer in a subsequent
evidentiary order: “The Court, however, has already denied Plaintiff’s motion to exclude
Dr. Zeithammer’s testimony, finding his survey methodology to be sufficiently reliable
under Daubert.” ECF No. 252 at 13. Therefore, the Court has already performed its
evidentiary “gatekeeping” function—pretrial—with respect to Dr. Zeithammer’s testimony,
and his testimony is therefore “admissible evidence [in] the trial record” the Court may
properly examine in determining whether Rule 50(b) relief is warranted. Goodman, 293
F.3d at 665; Dodge, 328 F.3d at 1221. Simply put, Weisgram’s insight that courts assess
Rule 	50(b) 	motions 	and 	evidentiary 	sufficiency 	following 	“excision 	of 	testimony
erroneously admitted” lacks force where Dr. Zeithammer’s testimony was, following the
Court’s Daubert analysis, properly admitted. 528 U.S. at 447.
Second, the “host of reasons” Plaintiff marshals, cited above, does not disturb the
Court’s prior admissibility determinations regarding the reliability and relevance of Dr.
Zeithammer’s methods and testimony as applied to the facts of this case. See, e.g., ECF
No. 283 at 7; ECF No. 252 at 13; Dodge, 328 F.3d at 1221. As noted at the Final Pretrial
Conference, Plaintiff’s exclusion arguments—just like the “host” it advances again in its
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Rule 50(b) motion—were well-suited for cross-examination, when Plaintiff had the
opportunity to expose any weaknesses in Dr. Zeithammer’s methods and analysis. See
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993) (“Vigorous cross-
examination, presentation of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking ... admissible evidence.”).
And Plaintiff’s Rule 50(b) arguments falter where, by now, the Court has already
discharged its Daubert duty regarding Dr. Zeithammer’s testimony; determined Dr.
Zeithammer’s testimony was admissible; presided over a seven-day jury trial; and a jury
heard testimony from numerous experts and witnesses, including Dr. Zeithammer; the
jury then weighed those witnesses’ testimony and credibility; and the jury returned its
verdict. Cf. In re Joint E. & S. Dist. Asbestos Litig., 52 F.3d 1124, 1132 (2d Cir. 1995)
(“Admissibility entails a threshold inquiry over whether a certain piece of evidence ought
to be admitted at trial . . . . A sufficiency inquiry . . . lies further down the litigational road.”)
(original emphasis); In re Urethane Antitrust Litig., 768 F.3d 1245, 1263 (10th Cir. 2014)
(“[A] district court must admit expert testimony as long as it is based on a reliable
methodology. It is then for the jury to evaluate the reliability of the underlying data,
assumptions, and conclusions.” (citation omitted)).
Third, Dr. Zeithammer testified at trial. See, e.g., ECF No. 317 at 10. Indicated
above, Plaintiff cross-examined Dr. Zeithammer. See generally id. at 42–76. The jury
heard 	direct, 	cross-examination, 	and 	re-direct 	examination 	testimony 	from 	Dr.
Zeithammer. But as Defendant observes—and contrary to Plaintiff’s suggestion—this is
not the “only” evidence of apportionment presented to the jury and contained in the trial
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record. Compare ECF No. 331 at 3, 5; and ECF No. 347 at 5, with ECF No. 343 at 5. For
instance, Ms. Vats testified there was “no indication” that there were “more sales or a less
steep dropoff in sales as a result of the lifestyle packaging.” ECF No. 315 at 158–59; see
also id. at 132. Mr. Kirby testified the “lifestyle images . . . led to frustration for consumers
because they couldn’t really read what we were trying to tell them because it’s all image.”
ECF No. 314 at 191; see also id. at 192. Mr. Vater attributed the success of the LifeProof
case to public relations efforts for the LifeProof brand. See ECF No. 316 at 63. And Mr.
Arst—as the above examples indicate, and contrary to Plaintiff’s suggestion—was not the
only witness beyond Dr. Ziethammer to opine on or testify regarding apportionment, and
testified that in his opinion there was no causal nexus between the “accused images” and
“Otter’s sales.” ECF No. 317 at 105. Taken together, this evidence provides a sufficient
basis 	for 	the 	jury’s 	factual 	apportionment 	conclusions—especially 	viewing 	it 	in
Defendant’s favor, as the Court is required to do. See Yield Dynamics, Inc. v. TEA Sys.
Corp., No. C 06-0331 VRW, 2007 WL 9812915, at *4 (N.D. Cal. Aug. 15, 2007) (denying
motion for judgment as a matter of law after reciting “partial list of the evidence upon
which the jury may have reasonably reached an apportionment”); Mountain Dudes, 946
F.3d at 1130.
After considering this testimony and the trial record in its totality—which, as
discussed 	above, 	includes 	Dr. 	Zeithammer’s 	admissible 	testimony—the 	Court 	is
unpersuaded that the evidence “points but one way” regarding apportionment and “is
susceptible to no reasonable inferences which may support” Defendant’s position in
resisting Plaintiff’s Rule 50(b) motion. Mountain Dudes, 946 F.3d at 1129 (emphases
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added). And for the same reason that ample testimony in the trial record counsels against
Rule 50(b) relief, so too does it show that Plaintiff errs in arguing “[a]bsent the Zeithammer
evidence, there is no evidence supporting any apportionment in this case.” ECF No. 331
at 15 (emphases added). Accordingly, the Court rejects Plaintiff’s harmless error
argument. Id.
Plaintiff may take issue with Dr. Ziethammer’s testimony. See generally ECF No.
331. But, confronted with the jury’s verdict—the product of its deliberative process,
following a seven-day trial, and its members’ consideration and weighing of experts’ and
witnesses’ credibility as well as trial exhibits—the Court declines Plaintiffs’ invitation to
disturb the verdict and enter judgment as a matter of law in its favor regarding
apportionment, based on what are, at the end of the day, Plaintiff’s admissibility qualms.
Compare ECF No. 343 at 8, with ECF No. 347 at 9. See also In re Urethane Antitrust
Litig., 768 F.3d at 1263; Questar Pipeline Co. v. Grynberg, 201 F.3d 1277, 1289 (10th
Cir. 2000) (noting where “award was within the range of evidence, [entering] judgment as
a matter of law . . . would be to impermissibly speculate as to the manner by which jurors
arrived at the verdict” (citation omitted)); Liberty Mutual, 913 F.3d at 983.
* * *
At this stage, “[t]his case is about sufficiency, not admissibility.” In re Joint E. & S.
Dist. Asbestos Litig., 52 F.3d at 1132. For that reason, Plaintiff’s Rule 50(b) Motion
stumbles out of the gate. But even considering its evidentiary challenges under Rule
50(b)’s sufficiency framework, Plaintiff has not shown it is entitled to “judgment as a matter
of law in its favor on apportionment and entry of an award of un-apportioned profits,” or,
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in the alternative, “a new trial limited solely to profit disgorgement.” ECF No. 331 at 15.
Cf. Mountain Dudes, 946 F.3d at 1129. Because the Court rejects Plaintiff’s Rule 50(b)
arguments, it need not reach Defendant’s arguments based on entertaining Plaintiff’s
“demand,” e.g., that doing so “violates the Seventh Amendment” or “encroaches on the
jury’s verdict.” ECF No. 343 at 2.
Plaintiff’s Motion for Judgment as a Matter of Law Under Rule 50(b) is DENIED.
B. Plaintiff’s Rule 59 Motion
Plaintiff “contingently moves, in the alternative, for a new trial” under Federal Rule
of Civil Procedure 59 “limited solely to profit disgorgement because Dr. Zeithammer’s
testimony and report should have been excluded.” ECF No. 333 at 2; see also Dupree v.
Younger, 598 U.S. 729, 732 (2023). Plaintiff’s Rule 59 Motion proceeds from the same
premises as its Rule 50(b) motion, and “incorporat[es] fully by reference” the same
arguments. ECF No. 333 at 2. As these arguments failed to persuade relief under Rule
50(b) was proper, so too do they fail to persuade relief under Rule 59 is proper. See also
Nosewicz v. Janosko, 857 F. App’x 465, 468 (10th Cir. 2021) (explaining bases for Rule
59 relief); Questar, 201 F.3d at 1289.
Plaintiff’s Contingent Motion for a New Trial Under Rule 59 is DENIED.
C. Defendant’s Rule 50(b) and Rule 52(b) Motions
Defendant moves under Rules 50(b) and 52(b) for renewed judgments as a matter
of law: “(1) barring disgorgement of Defendant’s profits; (2) holding Plaintiff’s registrations
for 	the 	2016 	photographs 	invalid; 	and 	(3) 	amending 	the 	Court’s 	order 	regarding
revocation.” ECF No. 335 at 2. Plaintiff sees no merit in Defendant’s requests for Rule
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50(b) and Rule 52(b) relief. ECF No. 345 at 2. The Court agrees with Plaintiff, addressing
Defendant’s arguments in turn. Before proceeding, the Court notes Defendant’s request
for oral argument, see ECF No. 335 at 2, but, after examining the parties’ post-trial briefing
and trial record, has determined that oral argument would not materially assist in the
resolution of Defendant’s motions.
1. 	Disgorgement
Defendant 	argues 	“there 	is 	no 	sufficient 	evidentiary 	basis” 	for 	Plaintiff’s
disgorgement claim. ECF No. 335 at 3. Plaintiff counters substantial evidence supports
the jury’s disgorgement award, precluding Rule 50(b) relief. See ECF No. 345 at 2. The
Court agrees with Plaintiff.
As a preliminary matter, the parties dispute what “legal standard” governs the
Court’s analysis of the jury’s disgorgement award. Compare ECF No. 335 at 4, with ECF
No. 345 at 2. Central to this dispute is I Dig Texas, LLC v. Creager, 98 F.4th 998 (10th
Cir. 2024), and whether it demands Plaintiff “prove” Defendant sold “more products
because of the advertisements with the copyrighted photographs.” See ECF No. 335 at
4 (emphasis omitted); but see ECF No. 345 at 3 (contending I Dig Texas “did not . . . set
forth a new standard requiring proof [that] defendant sold more products” (emphasis
omitted)). Defendant reads I Dig Texas broadly, and as essentially dispositive, see ECF
No. 335 at 4, while Plaintiff, in disagreement, urges a narrowed reading, see ECF No.
345 at 3.
The Court need not broadly opine on what “legal standard” I Dig Texas establishes
to resolve Defendant’s motions. To be sure, I Dig Texas bears relevance, asking whether
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its “claimant could make [a] showing” of “indirect profits” under the Copyright Act “without
tying the copyrighted images to any of the infringer’s profits.” 98 F.4th at 1004. And I Dig
Texas “answer[ed] no because the absence of a proven nexus would require us to
speculate about the possibility of any profits from the use of the copyrighted images.” Id.
But—as Plaintiff observes—I Dig Texas arose from “the district court grant[ing] summary
judgment . . . .” Id. at 1006. And the party claiming infringement “failed to present evidence
of any profit from the use of its photographs.” Id. Against these factual and procedural
backgrounds, the Tenth Circuit considered the infringed party’s indirect-profits damages
theory, affirming because, inter alia, “there [was] no evidence that [the infringer] sold any
more products because the advertisements had included [the] photographs.” Id. at 1008
(emphases added); see also id. (“[The infringed] presented no evidence that [the infringer]
had made any money from the advertisements bearing the copyrighted images; [the
infringed] showed only that [the infringer] had included copyrighted images in its
advertising.”) (emphases added). It is these distinguishable factual and procedural
backgrounds that, in this case, limit I Dig Texas’s reach. E.g., I Dig Texas was decided
following summary judgment; Defendant’s post-verdict motions arise following a seven-
day jury trial. Compare 98 F.4th at 1006; id. at 1007 (“Because this issue arises on
summary judgment, the court's inquiry involves a question of law on the existence of a
genuine dispute of material fact.” (citation omitted)), with ECF No. 335, and Dupree, 598
U.S. at 732; Mountain Dudes, 946 F.3d at 1129.
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Accordingly, the Court declines to read, or apply, I Dig Texas as broadly as
Defendant, and proceeds in its analysis of Defendant’s evidentiary arguments with I Dig
Texas’s distinguishing features in mind.
Fundamentally, Defendant argues, with select citations to the trial record, that
Plaintiff only advanced “generalized evidence” of increased sales from the asserted
images, and thus “there is no legally sufficient evidentiary basis for a finding or award of
$3 million in disgorgement” damages. ECF No. 335 at 8. Plaintiff, offering competing
evidentiary citations, contends there was sufficient trial evidence for a jury to “reasonably
find [a] causal nexus” between the “infringing images and Defendant’s profits.” ECF No.
345 at 6 (capitalization omitted).
Proceeding, as the Court must, under Rule 50(b)’s well-settled legal framework,
there is sufficient and substantial evidence to sustain the jury’s findings regarding and
award of disgorgement damages. See Webco, 278 F.3d at 1128. For example, in his
testimony Mr. Kirby agreed that “packaging is often considered the face of the brand.”
ECF No. 314 at 41. He also testified “interesting imagery” helps a product “pop out” so
that a customer actually “goes and looks at it,” an aspect of a “call to action,” defined as
a part of an advertisement where “there’s a button to push buy now, that would be a call
to action, or shop now or learn more. And a package would be that call to action on the
shelf.” ECF No. 314 at 40. Mr. Kirby further testified that Defendant’s own internal
documents and survey analyzed infringing packages and determined they impacted
customers positively, and that Mr. L’Heureux’s images “worked.” ECF No. 314 at 47.
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Ms. Vats agreed in her testimony that the way to get customers’ “eyeballs on your
product is with imagery.” ECF No. 315 at 142. Ms. Vats also testified in agreement that
the length of time—2.6 seconds—the asserted runner image held over respondents’
attention was a “really long time.” ECF No. 315 at 315. And, consistent with Mr. Kirby’s
call to action testimony, and drawing all inferences in favor of Plaintiff, see Liberty Mutual,
913 F.3d at 983, Ms. Vats testified there was a relationship between products’ call to
action and the imagery. ECF No. 315 at 153.
Testimony of Plaintiff’s expert, Mr. Drews, is likewise consistent. Mr. Drews
testified 	he 	investigated 	whether 	Defendant’s 	profits 	were 	related 	to 	Defendant’s
infringement. See ECF No. 315 at 28. Mr. Drews testified there was “information
indicating that there was a causal relationship between the use of the images and the
generation of the profits,” and later it was his interpretation “that there was some way,
shape, or form that the images did contribute to the generation of the profits.” ECF No.
315 at 29, 61. Mr. Drews’s testimony in support of this point was thorough, but he testified
at one point that “there’s the simple fact that the images were used on the packaging
itself,” and that “when people buy that particular product, there’s the image right there . .
. when you actually receive the product, even from an online purchase, you still have the
imagery associated with that particular thing, the reinforcement of that active lifestyle
brand message.” ECF No. 315 at 30; see also id. at 29 (testifying “Mr. L’Heureux’s
imagery was a critical component of the success of the LifeProof brand”).
Against the weight of this evidence and remaining evidence in the trial record,
Defendant’s 	argument 	Plaintiff 	only 	presented 	“generalized 	evidence” 	regarding
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disgorgement deflates. ECF No. 335 at 5 (emphasis added). As indicated above in the
Court’s discussion of I Dig Texas, as a doctrinal matter Defendant fails to persuade that
Plaintiff was required to prove Defendant sold “any more products” because of the
packaging. ECF No. 335 at 8. Simply put, this is not a case where Plaintiff put forth “no
evidence that [Defendant] had made any money” based on its conduct, or where Plaintiff
merely put forth evidence showing Defendant put “copyrighted images in its advertising”
without any economic consequence or effect. I Dig Texas, 98 F.4th at 1008 (emphases
added). Cf., e.g., Wood v. Houghton Mifflin Harcourt Pub. Co., 589 F. Supp. 2d 1230,
1245 (D. Colo. 2008) (“[E]stablishing a causal nexus does not require the plaintiff ‘to put
a . . . buyer on the stand to testify that she bought’ the product at issue specifically
because of the infringement.”) (quoting Andreas v. Volkswagen of Am., Inc., 336 F.3d
789, 797 (8th Cir. 2003); Garcia v. Coleman, No. C-07-2279 EMC, 2009 WL 799393, at
*4 (N.D. Cal. Mar. 24, 2009) (“[The plaintiff] need only have offered evidence that the
photograph, featured prominently on the Sonoma Ridge wine label, ‘may have actually
influenced the purchasing decisions’ of consumers that bought the wine.” (citation
omitted)). At a bare minimum, the testimony discussed above undercuts I Dig Texas’s
application in a way that results in judgment as a matter of law in Defendant’s favor. This
is especially true where the Court is required, in ruling on Defendant’s motion, to draw all
inferences in Plaintiff’s favor. See, e.g., Liberty Mutual, 913 F.3d at 983.
The Court makes one final note. Arguably, there is a tension between evidence
supporting the jury’s apportionment and disgorgement findings. It is not the Court’s job to
resolve it by second-guessing the jury. The jury’s award was within the range of evidence.
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See Questar, 201 F.3d at 1289. That contradictory evidence exists in the record is no
reason to set its award aside. See Russo v. Ballard Med. Prods., 550 F.3d 1004, 1018
(10th Cir. 2008) (“In setting damages, the jury’s function is to weigh contradictory
evidence, to judge the credibility of the witnesses, and to resolve factual disputes.”
(quotation 	omitted)). 	And, 	regarding 	disgorgement 	specifically, 	the 	Court 	cannot
conclude, considering the totality of trial evidence and testimony, that “all of the evidence
in 	the 	record 	reveals no 	legally 	sufficient evidentiary 	basis” 	to 	sustain 	the 	jury’s
disgorgement findings and conclusions. Bill Barrett, 918 F.3d at 766 (citations omitted)
(emphases added).
Accordingly, judgment as a matter of law regarding the jury’s finding regarding and
award of disgorgement damages is improper.
2. 	The 2016 Registrations
Defendant renews its Rule 50(a) motion “for a holding that . . . the 2016
Registrations” are invalid under 17 U.S.C. § 411(b). ECF No. 335 at 8. Essentially,
Defendant “asks the Court to declare the ‘648 and ‘728 Registrations invalid or, in the
alternative, to request direction from the Registrar of the Copyright Office and enter
judgment accordingly.” ECF No. 335 at 9. Plaintiff argues Defendant’s challenge is
“without merit and outside the realm of Unicolors.” ECF No. 345 at 12. The Court agrees
with Plaintiff.
Section 411(b)(1) of the Copyright Act provides a “safe harbor” for those who
“inadvertently include inaccurate information on a registration application.” Oliver v. Meow
Wolf, Inc., No. CV 20-237 KK/SCY, 2022 WL 3682936, at *3 (D.N.M. Aug. 25, 2022)
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(citing Unicolors, Inc. v. H&M Hennes & Mauritz, L. P., 595 U.S. 178, 181 (2022)). Under
this safe harbor provision, a registration certificate is valid “regardless of whether the
certificate contains any inaccurate information, unless . . . the inaccurate information was
included 	on 	the 	application 	for 	copyright 	registration 	with 	knowledge 	that 	it 	was
inaccurate.” 17 U.S.C. § 411(b)(1)(A). “Knowledge,” under § 411(b), is defined as “the
fact or condition of being aware of something.” Unicolors, 595 U.S. at 184 (quotations
omitted); see also id. at 185 (“Registration applications call for information that requires
both legal and factual knowledge.” (citation omitted)).
Assuming 	Mr. 	L’Heureux 	provided 	inaccurate 	information 	in 	the 	2016
Registrations, trial testimony reveals—or, at a minimum, provides sufficient evidence,
particularly 	when 	drawing 	inferences 	in 	Plaintiff’s 	favor—he 	did 	not 	include 	such
information with “knowledge that it was inaccurate.” § 411(b)(1)(A). Mr. L’Heureux
testified that at the time he submitted the copyright application, he believed he owned the
Lake Powell images; at the time he submitted the corrective supplemental copyright
applications, that he believed he owned the copyright images; and that no one at that time
told him that he did not own them. ECF No. 313 at 247. This is sufficient evidence to
survive Defendant’s Rule 50(b) motion regarding the 2016 Registrations. See Webco,
278 F.3d at 1128. And given the nature of this testimony, the Court is unpersuaded by
Defendant’s argument Mr. L’Heureux was “willfully blind” to the factual inaccuracy of his
submissions or their legal requirements, or that the Copyright Office would have rejected
the application but for Plaintiff’s inaccurate submission. ECF No. 335 at 9. Cf. Meow Wolf,
2022 WL 3682936, at *8 (concluding plaintiff was “at best willfully blind” where copyright
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office examiner explicitly told plaintiff of material source requirement on May 13, 2019,
and plaintiff applied for registration on September 19, 2019).
Defendant points to the Court’s summary judgment order regarding its ownership
of the Lake Powel images as practically dispositive. See, e.g., ECF No. 335 at 10.
Certainly, the Court ruled in its summary judgment order that Defendant owned the Lake
Powell images. See ECF No. 251 at 7. But in its Reply, Defendant contends the “summary
judgment order simply established the legal predicates for Otter’s position, with the factual
predicates established in parallel by the trial record.” ECF No. 348 at 6 (emphases
added); see also id. (“Based on the trial record, Mr. L’Heureux knew, or was willfully blind
to, [Defendant’s] ownership . . . .” (emphasis added)). Defendant cannot argue, on one
hand, that the Court’s summary judgment motion resolves the matter—or should have,
from a procedural perspective, long ago resulted in a resolution regarding the 2016
Registrations’ validity—while, on the other, relying in equal part on the trial record for its
Rule 50(b) motion’s invalidity argument. See id. This also disarms Defendant’s argument
the Court’s prior appealability determinations “vitiate” § 411. ECF No. 348 at 7. Moreover,
the Court’s conclusions on Defendant’s 2016 Registration arguments are bolstered by the
simple fact that, at trial, Plaintiff did not seek relief based on the Lake Powell images. See,
e.g., ECF No. 313 at 247; ECF No. 323 at 2.
Accordingly, Rule 50(b) relief based on the 2016 Registration grounds asserted in
Defendant’s motion, see ECF No. 335 at 11–12, is unwarranted.
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3. 	Revocation
Defendant moves under Rule 52(b) for an order “amending the Court’s prior order
on 	revocation,” 	essentially 	arguing 	amendment 	is 	required 	to 	“avoid 	creating 	an
inconsistent verdict.” ECF No. 335 at 12. Plaintiff discerns no merit in Defendant’s
“rehashed revocation arguments,” contending its Rule 52(b) motion is a veiled effort to
improperly “disturb the jury’s verdict.” ECF No. 345 at 15. The Court agrees with Plaintiff.
Federal Rule of Civil Procedure 52(b) permits courts to “amend its findings . . . and
may amend the judgment accordingly.” “The purpose of such a motion is to correct
manifest errors of law or fact, or, in some limited situations, to present newly discovered
evidence.” Jacobson v. XY, Inc., Civil Action No. 07–cv–02670–WYD–BNB, 2010 WL
2692170, at *6 (D. Colo. July 6, 2010) (citation omitted). “Manifest error is an error that is
plain and indisputable, and that amounts to a complete disregard of the controlling law or
the credible evidence in the record.” Hardie-Tynes Co. v. SKF USA, Inc., No. 2:16-CV-
1417-LCB, 2022 WL 1082395, at *1 (N.D. Ala. Feb. 1, 2022) (quotation omitted).
As with this case’s broader factual and procedural backgrounds, the Court
presumes the parties’ familiarity with the jury’s verdict, the parties’ post-verdict revocation
briefing, and the Court’s revocation order. See, e.g., ECF No. 309; ECF Nos. 320–323.
Proceeding from that presumption, nothing in Defendant’s motion upsets the analysis and
conclusions in the Court’s prior revocation order, especially when considered under Rule
52(b)’s narrow standard for granting relief. See generally ECF No. 323; Hardie-Tynes,
2022 WL 1082395, at *1 (noting Rule 52(b) motions are “disfavored in federal court and
are 	granted 	only 	in 	narrowly 	circumscribed 	circumstances” 	(quotations 	omitted)).
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Defendant has adduced no new evidence, see, e.g., Far Out Prods., Inc. v. Oskar, 247
F.3d 986, 998 (9th Cir. 2001), showing the Court’s prior revocation order should be
amended pursuant to Rule 52(b). And the trial evidence Defendant marshals in support
of its Rule 52(b) motion, see ECF No. 335 at 14, does not show the Court “completely
disregard[ed] . . . credible evidence in the record” in its revocation order, Hardie-Tynes,
2022 WL 1082395, at *1 (quotation omitted).
As explained in the Court’s revocation order, there are multiple possible bases for
the jury’s determinations, and moreover “whether the implied license was revoked is
irrelevant because use outside the scope of an implied license is by definition unlicensed
and not permitted use and, thus, there is nothing to revoke.” ECF No. 323 at 3. Then, as
now, Defendant has failed to meet its burden of showing post-trial relief—now under Rule
52(b)—is proper, especially considering the evidence the Court recited in its revocation
order, and that Defendant’s Rule 52(b) arguments are substantially similar to those
advanced and rejected in its prior revocation briefing. See also PNC Equip. Fin., LLC v.
Carr, 	No. 	19-mc-80013-BLF, 	2022 	WL 	899849, 	at 	*1 	(N.D. 	Cal. 	Mar. 	28, 	2022)
(“Importantly, neither Rule [52(b) or 59(e)] may be used as a vehicle for reconsideration
of issues already raised or a rehearing on the underlying motion.” (citation omitted)); Bell
v. VF Jeanswear LP, No. CV-14-01916-PHX-JJT, 2019 WL 337012, at *1 (D. Ariz. Jan.
28, 2019) (“In its present [Rule 52(b)] Motion, Plaintiff has presented nothing new, and it
should thus come as no surprise to Plaintiff that the Court’s findings remain the same
now.”).
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To the extent that Defendant premises its motion on the jury’s award of damages
based on the “lesser included period” of June 2018 through trial, the Court previously
rejected this argument and does so again. Compare ECF No. 335 at 12, with ECF No.
323 at 3. In its prior revocation order, as now, the Court observed “Defendant’s argument
centers around the damage time frames that it suggested. Though tempting, the Court
remains convinced that the jury understood and followed the Court’s instructions. In that
vein, Defendant fails to demonstrate that the jury’s verdict was not supported by
substantial evidence. Absent such a finding, the Court cannot set aside the jury’s
findings.” ECF No. 323 at 3. This is particularly true where, as Defendant’s briefing
reveals, 	its 	Rule 	52(b) 	arguments depend 	in 	part 	on upsetting 	the 	jury’s 	factual
determinations, which the Court in its discretion declines to do. See, e.g., ECF No. 335
at 12 (“Following trial, the jury found no actual or disgorgement damages were attributable
to any uses from August 24, 2017 through trial.”) (first emphasis added); ECF No. 348 at
10 (“[T]he only consistent interpretation remains that the jury found an outside-of-scope
use . . . .”) (emphasis added).
At bottom, “[Defendant] has not identified a manifest error of law or fact in the
Court’s [revocation] order. Nor has it presented newly discovered evidence.” Shenzen
Synergy Digital Co. v. Mingtel, Inc., No. 4:19-cv-00216, 2022 WL 2252585, at *3 (E.D.
Tex. June 22, 2022); Hyatt v. May, No. 1:19-cv-00250-MR-WCM, 2023 WL 2742227, at
*13 (W.D.N.C. Mar. 29, 2023) (denying Rule 52(b) motion where defendant raised “all of
[his] arguments in his initial round of post-trial briefing . . . and the [c]ourt addressed each
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of these arguments”). Defendant is not entitled to Rule 52(b)’s “extraordinary relief.”
Shenzen Synergy, 2022 WL 2252585, at *3.
* * *
Defendant’s Renewed Motions for Judgment as a Matter of Law are DENIED.
D. Plaintiff’s Prejudgment and Post-judgment Interest Motion
Plaintiff seeks an award of prejudgment and post-judgment interest based on
Colorado’s statutory interest rate. See generally ECF No. 327. Defendant does not
challenge Plaintiff’s entitlement to an award of post-judgment interest, or an award of pre-
judgment interest on the jury’s award of “actual damages.” ECF No. 339 at 2 n.1. Instead,
the parties’ core disputes concern (1) whether Plaintiff is entitled to prejudgment interest
on its $3,000,000 disgorgement award, and (2) the applicable interest rate to that award.
Compare ECF No. 339 at 2–3, with ECF No. 342 at 2.
For the following reasons, the Court agrees with Plaintiff that it is entitled to
prejudgment interest on its actual damages and profit disgorgement awards. The Court
concludes the applicable prejudgment interest rate is the prime rate.
1. 	Prejudgment Interest’s Availability
Indicated above, the parties fundamentally dispute whether the Court should
award prejudgment interest on disgorged profits from Defendant’s infringement. Compare
ECF NO. 339 at 5–9, with ECF No. 342 at 2–9. The Court agrees with Plaintiff that an
award of prejudgment interest on its $3,000,000 profit disgorgement award is proper.
Central to the parties’ dispute is Kleier Advert., Inc. v. Premier Pontiac, Inc., 921
F.2d 1036 (10th Cir. 1990), and whether, to summarize Defendant’s argument, portions
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of Kleier “purport[ing] to address prejudgment interest based on [disgorgement] are mere
dicta,” ECF No. 339 at 8, and conflict with other cases that would preclude prejudgment
interest on the disgorgement award, id. at 6. Contra ECF No. 342 at 5 (“[M]ultiple Courts
in this Circuit and elsewhere have followed . . . Kleier in awarding prejudgment interest
on profits disgorgement awards.” (citations omitted)).
Kleier is clear: “[P]rejudgment interest is available to plaintiffs under the Copyright
Act.” 921 F.2d at 1041; see also id. (“This pronouncement comports with our earlier
decision that under federal law prejudgment interest is ordinarily awarded, absent some
justification for withholding it.” (quotations omitted)). The Tenth Circuit went so far as to
conclude the “trial court abused its discretion by denying Kleier prejudgment interest on
its copyright claims.” Id. at 1041 (emphasis added).
Defendant contends that prejudgment interest is unavailable because it “aims to
compensate, [while] disgorgement aims to deter.” ECF No. 339 at 4 (capitalization
omitted). Kleier answers: “For the restitutionary purpose of this remedy to be served fully,
the defendant generally should be required to turn over to the plaintiff not only the profits
made from the use of the property, but also the interest on these profits, which can well
exceed the profits themselves.” 921 F.2d at 1041 (quotations omitted) (emphasis added);
see also id. (“[I]t would be anomalous to hold that a plaintiff would be entitled to recover
profits flowing from infringement but not revenue generated by the use of the profits.”
(quotations omitted)); Leonard v. Stemtech Int’l Inc, 834 F.3d 376, 396 (3d Cir. 2016).
The 	Court sees no reason to doubt the Tenth 	Circuit’s 	clear holding 	and
reasoning—nor can it, lest it abuse its discretion, see Kleier, 921 F.2d at 1041—
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particularly where other courts’ understanding of Kleier bolster the conclusion that
awarding prejudgment interest on disgorgement awards in copyright actions is proper.
See, e.g., In re Indep. Serv. Organizations Antitrust Litig., 23 F. Supp. 2d 1242, 1253 (D.
Kan. 1998) (“The Tenth Circuit in Kleier did not draw any distinction between an award of
prejudgment interest on the copyright owner's damages and an award of damages on the
infringer’s profits.”) (citing 921 F.2d at 1041); Sanho Corp. v. KaiJet Tech. Int’l Ltd., Inc.,
No. 1:18-cv-05385-SDG, 2024 WL 4327030, at *1 (N.D. Ga. Sept. 27, 2024) (“[C]ourts
around the country have found pre-judgment interest appropriate for copyright violations
. . . . Kleier is particularly instructive on the propriety of copyright pre-judgment interest
where, as here, the jury has awarded infringer's profits.”). And given Kleier’s obvious and
binding applicability, the Court need go no further in engaging with Defendant’s litany of
unbinding and distinguishable cases. See, e.g., ECF No. 339 at 6; Gen. Steel Domestic
Sales, LLC v. Chumley, No. 10-cv-01398-PAB-KLM, 2014 WL 788040, at *3 (D. Colo.
Feb. 27, 2014) (declining to award prejudgment interest on disgorgement award on false
advertising claim under the Lanham Act).
Finally, Defendant argues Kleier announced a two-part test whose application in
this case precludes an award of prejudgment interest on the disgorgement award. See
ECF No. 339 at 4. The Court notes Klier articulated its two-part test for awarding
prejudgment interest after making clear that prejudgment interest is available in copyright
actions. See 921 F.3d at 1042 n.4. Regardless, applying this test to this case still warrants
an award of prejudgment interest on the jury’s disgorgement award. First, an award of
prejudgment interest would serve to compensate Plaintiff. See id.; In re Indep. Serv.
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Organizations Antitrust Litig., 23 F. Supp. 2d at 1250 (“Prejudgment interest is necessary
to achieve the goal of compensating copyright owners under the Copyright Act.”) (citing
Kleier, 921 F.2d at 1042). Second, equities do not “preclude the award of prejudgment
interest.” Kleier, 921 F.2d at 1042 n.4 (quotation omitted). While Defendant argues
prejudgment interest on the disgorgement award would be “exorbitant,” under Kleier a
defendant “should be required to turn over to the plaintiff not only the profits made from
the use of the property, but also the interest on these profits, which can well exceed the
profits themselves.” 921 F.2d at 1041 (quotation omitted) (emphasis added). In other
words, Kleier anticipated—and rejected—Defendant’s windfall argument. The Court
follows suit. Though notably, discussed below, prejudgment interest does not exceed the
jury’s disgorgement award.
The Court is bound by Kleier. Defendant fails to persuade otherwise. Accordingly,
the Court rejects Defendant’s arguments regarding the availability of prejudgment interest
on the jury’s $3,000,000 disgorgement award. For the reasons set forth above, and in
exercising the Court’s discretion, see, e.g., Kleier, 921 F.2d at 1041–42, prejudgment
interest is available to Plaintiff on the jury’s disgorgement award.
2. 	Applicable Interest Rate
The parties dispute what interest rate should apply. Plaintiff seeks application of
Colorado’s eight percent statutory interest rate, or, in the alternative, the “U.S. prime rate
for borrowing.” ECF No. 327 at 4. Defendant contends the Court should apply the “52-
week Treasury bill rates.” ECF No. 339 at 13. For the following reasons, the Court
concludes it is appropriate to use the prime rate.
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Regarding the award of prejudgment interest on copyright infringement claims,
because “there is no federal statutory interest rate for prejudgment interest, trial courts
have discretion to choose which rate to impose.” Live Face On Web, LLC v. Integrity Sols.
Grp., Inc., 421 F. Supp. 3d 1051, 1073 (D. Colo. 2019) (citing Kleier, 921 F.2d at 1042
n.4).
After considering the parties’ arguments and relevant legal authority, the Court
applies the prime rate. See, e.g., Live Face on Web, 421 F. Supp. 3d at 1074. Such an
application is in line with other courts’ persuasive determinations regarding prejudgment
interest rates in copyright infringement actions, and the Court finds application of the
prime rate to be reasonable in this case. See, e.g., id; Adept Computer Sols., Inc. v. Zoll
Data Sys., Inc., Civil Action No. 05-cv-01917-RPM, 2008 WL 410581, at *1 (D. Colo. Feb.
14, 2008); Notte v. New Sushi, LLC, No. 22cv6394 (EP) (JBC), 2024 WL 706783, at *8
(D.N.J. Feb. 20, 2024); Habersham Plantation Corp. v. Art & Frame Direct, Inc., No. 10-
61532-CIV, 2011 WL 7394511, at *4 (S.D. Fla. Dec. 15, 2011).
From here, the Court has considered the parties’ arguments regarding Plaintiff’s
prejudgment interest calculation. Compare ECF No. 327 at 4, and ECF No. 342 at 11,
with ECF No. 339 at 14. In summary, Defendant has not persuaded the Court that
Plaintiff’s prejudgment interest calculation using the prime rate is erroneous. The Court
discerns no error in Mr. Drews’s use of a pro rata convention, rather than a mid-point
convention. See ECF No. 327-1 at 3. Thus, the Court finds, in its discretion, that the
calculation submitted by Plaintiff is reasonable and should be adopted. See Adept
Computer 	Solutions, 	2008 	WL 	410581, 	at 	*1 	(exercising 	discretion 	and 	adopting
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defendant's submitted and reasonable calculation); Live Face on Web, 421 F. Supp. 3d
at 1074.

Accordingly, a total amount of $1,216,045 is awarded in prejudgment interest to
Plaintiff. This number represents the sum of prejudgment interest on Plaintiffs actual
damages, $46,603, and profit disgorgement, $1,169,442. See ECF No. 327-1 at 3.

Plaintiffs Motion for Prejudgment and Post-judgment Interest is GRANTED.
Plaintiff is awarded $1,216,045 in prejudgment interest. Plaintiff is further awarded post-
judgment interest at the rate of 4.28%. See 28 U.S.C. § 1961(a); ECF No. 339 at 2 n.1.

Hil. CONCLUSION

Consistent with the above analysis, the Court DENIES Plaintiff's Motion for Judgment
as a Matter of Law Under Federal Rule of Civil Procedure 50(b), ECF No. 331, 338;
DENIES Plaintiffs Contingent Motion for a New Trial Under Federal Rule of Civil
Procedure 59, ECF No. 333; DENIES Defendant Otter Products, LLC’s Renewed Motions
for Judgment as a Matter of Law Under Federal Rules of Civil Procedure 50(b) and 52(b),
ECF No. 335; and GRANTS Plaintiffs Motion for Prejudgment and Post-judgment
Interest, ECF No. 327.

DATED this 9th day of April 2025.

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