UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-2154
RICHARD BERMAN,
Plaintiff - Appellant,
and
MAURA FLYNN; SPEAKEASY VIDEO, LLC,
Plaintiffs,
v.
CURT JOHNSON; INDIE GENIUS PRODUCTIONS, LLC,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:07-cv-00039-TSE-TRJ)
Argued: December 4, 2008 Decided: March 6, 2009
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Hamilton Phillips Fox, III, SUTHERLAND, ASBILL &
BRENNAN, L.L.P., Washington, D.C., for Appellant. Steve G.
Heikens, Minneapolis, Minnesota, for Appellees. ON BRIEF: James
J. Briody, SUTHERLAND, ASBILL & BRENNAN, L.L.P., Washington,
D.C., for Appellant.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
The plaintiff, Richard Berman, appeals the district
court’s declaratory judgment, which awards his co-plaintiff,
Maura Flynn, and the defendant, Curt Johnson, joint ownership of
the copyright in the film Your Mommy Kills Animals (YMKA).
Specifically, Berman appeals the district court’s refusal to
include in the declaratory judgment a provision affirming that
he has exclusive promotion and distribution rights to YMKA. The
declaratory judgment was entered in post-trial proceedings after
a jury had awarded Berman damages against Johnson for the
latter’s complete breach of the contract that gave Berman
certain promotion rights in YMKA. Because we agree with the
district court that it would constitute double recovery to grant
Berman promotion rights after he had recovered damages for
breach of contract, we affirm.
I.
Berman is the president of a public affairs firm,
Berman and Company, and manages several non-profit organizations
in that capacity. One of those organizations, the Center for
Consumer Freedom (CCF), opposes the agenda of People for the
Ethical Treatment of Animals (PETA), an organization that
advocates animal rights. In his capacity as manager of CCF,
Berman entered a contract with Maura Flynn and Curt Johnson to
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produce a film, later titled Your Mommy Kills Animals, that
would examine and criticize PETA’s activities. The terms of the
contract were laid out in a “Deal Memo” negotiated by the
parties at a meeting in the fall of 2005. Under the Deal Memo
Berman would invest $300,000 in the film (all of the expected
cost), would have priority in having his investment repaid, and
would receive $60,000 in profit on his investment. The Deal
Memo also transferred exclusive promotion rights in YMKA to
Berman’s company, stating that “[a]ny contracts for promotion of
said film . . . will be contracted through Berman & Company.”
J.A. 460. (Berman testified at trial that this promotion right
was understood to include an exclusive distribution right as
well.) Berman invested the $300,000 specified in the Deal Memo,
plus an additional $10,000 during production of the movie to
cover extra costs.
At the fall 2005 meeting in which the Deal Memo was
agreed to, the parties also reviewed a written treatment (or
outline) of the film, prepared by Flynn, that set out the film’s
proposed content, including its themes (the “treatment”). In
2006, disagreements arose regarding the treatment, as the film
was being directed by Johnson. During this time Johnson
received but repeatedly rejected recommended changes from Flynn.
Upon its completion the film differed greatly from the
treatment. Rather than focusing on a critique of PETA’s
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practices, as the treatment called for, the vast majority of the
film -- roughly eighty percent -- was dedicated to a discussion
of the trials and convictions of several members of Stop
Huntingdon Animal Cruelty (SHAC), another pro-animal rights
group. Further, the film presented the SHAC members as
champions of free speech, and thus in a positive light. Only
about twenty percent of the film involved any discussion of
PETA.
Because the completed film varied from the treatment
and their understanding of its proposed content, Berman, Flynn,
and Flynn’s company, Speakeasy Video, LLC sued Johnson for
breach of contract, actual fraud, constructive fraud, and a
declaratory judgment as to the ownership of the copyright. The
breach of contract claim asserted that Johnson had not produced
a film consistent with the treatment and that Johnson had
“promoted[d] the film via the Internet, interviews, screenings,
and by engaging a distribution consultant” in violation of
Berman’s exclusive promotion rights. J.A. 10. The declaratory
judgment claim asked the court to recognize Speakeasy Video as
the owner of the copyright in the film; it made no mention of
any rights held by Berman. Johnson filed several counterclaims,
including one for a declaratory judgment awarding him ownership
of the copyright.
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At trial the jury found in favor of Berman and Flynn
on their breach of contract claims and in favor of Berman on his
actual fraud claim. Berman was awarded $360,000 in damages for
the breach of contract and $10,000 for the fraud claim.
Following the jury trial, the district court turned to the
declaratory judgment claims, directing the parties to file
briefs on the issue of whether Speakeasy Video or Johnson owned
the copyright in YMKA. In a memorandum responding to Johnson’s
request for declaratory relief, Berman asked that any
declaration of Johnson’s copyright rights in YMKA recognize that
the exclusive right to promote and distribute the film had been
transferred to Berman in the Deal Memo. Following a hearing on
the copyright issue, the district court declared that Flynn and
Johnson were joint authors of YMKA, and thus co-owners of the
copyright. In the same order, the district court denied
Berman’s request for a declaration adjudging him owner of the
promotion and distribution rights, concluding that to grant
Berman those rights after he had already recovered damages for
breach of contract would constitute a double recovery. Berman
now appeals that order.
II.
Under Virginia law a plaintiff in a contract action is
“not allowed to recover for a breach of contract more than the
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actual loss sustained by him, nor . . . to be put in a better
position than he would have been had the wrong not been done and
the contract not been broken.” Orebaugh v. Antonious, 58 S.E.2d
873, 875 (Va. 1950). It follows that a party may not recover
more than once for the same injury. See Nizan v. Wells Fargo
Bank Minnesota National Ass’n, 650 S.E.2d 497, 502 (Va. 2007).
At issue here is whether the jury’s damages award to Berman took
into account the loss of the promotion and distribution rights
purportedly transferred by the Deal Memo. We agree with the
district court that the jury, in finding a breach of contract
and awarding damages, compensated Berman for all losses flowing
from the breach. A declaration granting Berman the promotion
and distribution rights, which had already been taken into
account in the jury’s damages award to him, would therefore
amount to a double recovery.
At trial Berman asked for damages for the complete
breach of his contract with Johnson, including Johnson’s
infringement upon Berman’s promotion and distribution rights.
This is made clear both from Berman’s complaint and his closing
argument at trial. The breach of contract claim in Berman’s
complaint states that “Johnson has and continues to promote the
film via the Internet, interviews, screenings, and by engaging a
distribution consultant.” J.A. 10. Further, Berman’s lawyer in
closing argument stated that “[Johnson] breached the contract in
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another way, too. Mr. Berman was supposed to have exclusive
promotion rights. Mr. Johnson ignored those and went off on his
own.” J.A. 374.
Berman’s presentation of the violation of his
promotion rights as part of the larger breach of contract means
that the jury’s $370,000 verdict in his favor accounts for his
loss of these rights. Returning exclusive promotion and
distribution rights in the film to Berman after he had been
awarded any damages for their loss as part of the contract’s
total breach would, as the district court concluded, result in a
double recovery. Accordingly, the declaratory judgment entered
by the district court is
AFFIRMED.
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