dissenting:
The majority concludes that the district court committed clear error in awarding plaintiff $1,750.00 in profits attributable to defendant Benton & Bowles’ copyright infringement. The court vacates the district court’s apportionment and instructs the lower court to award plaintiff more than a de minimis portion of the $175,872.78 defendant earned from the commercial. But the court fails to acknowledge that this disposition is flatly contrary to the law of this case that “the infringement ‘was minimal,’ consisting principally of a ten-note ostinato, and that the infringing material did not add substantially to the value of the commercial.” Cream Records, Inc. v. Jos. Schlitz Brewing Co., 754 F.2d 826, 828 (9th Cir.1985) (emphasis added).
“Under the ‘law of the case’ doctrine, a court is generally precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case.” United States v. Silverman, 859 F.2d 1352, 1353 n. 1 (9th Cir.1988). The majority does not so much as even mention this doctrine, nor does it attempt to explain why the district court committed clear error in awarding plaintiff one percent of Benton & Bowles’ profit where we earlier affirmed an award to plaintiff of only about three-fourths of one percent of defendant Schlitz’ profit attributable to the infringing music.1 We specifically concluded that this finding was “for the district court to make” and we found that the court’s apportionment of Schlitz’s profits did “not conflict with the general verdict.” Cream I, 754 F.2d at 829.
In Cream I, we upheld the district court’s conclusion that plaintiff was entitled only to one-tenth of one percent of Schlitz’s profit. We remanded as to defendant Benton & Bowles, however, because the district court assumed that “the profits of the advertising company would be subsumed in the profits of the firm hiring it.” Cream I, 754 F.2d at 829. While it was incumbent upon the lower court to determine Benton & Bowles’ profits and apportion those attributable to the infringement, it would hardly have been appropriate for that court to reverse its earlier finding upheld on appeal that the infringement was minimal. The district court is to be commended for strictly following its mandate. Unfortunately the majority has chosen to dodge the law of this case. I dissent.
. Plaintiff had introduced unrebutted evidence that the infringing commercial constituted 13.7 percent of Schlitz’s advertising budget for the year. Similarly, Cream introduced evidence that Schlitz’s profit on malt liquor sales that year was $4,876 million. Cream therefore contended that $668,012 of Schlitz’s profit was attributable to the infringing commercial. The only issue subject to debate was the infringing music’s relative contribution to the advertising power of the infringing commercial. Cream had argued that the infringing music was responsible for 10 percent of the commercial’s sales impact. Our decision upholding the district court’s award of $5,000 to Cream can only be understood as accepting the district court’s contrary conclusion that the infringing music was responsible only for about three-fourths of one percent of the commercial’s advertising power.