Judge to Decide Damage Award in TVX Suit
Attorneys are seeking more than $400,000 in damages for copyright infringement, defamation and emotional distress suffered by Coton when Burge used her image in the re-released 1982 adult film “Body Magic.”
“The purpose of an award of the infringer’s profits is to prevent the infringer from unfairly benefitting from his own wrongful conduct,” the court documents said.
Coton’s attorney, Richard A. Harrison, told XBIZ that he’s confident the judge will award her some money, but that the suit is not about money.
“The point [of the suit] was to vindicate her reputation, to send a strong message to people that she was not involved in this at all.”
The court documents said, “Florida statutes provides that no person shall ‘publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person’ without that person’s express written or oral consent.”
The papers state that Jade is entitled to both actual damages and punitive damages for the unlawful misappropriation of her photograph and likeness.
Coton testified that the defendant’s misappropriation of her image and its use in connection with the “Body Magic” pornographic movie has damaged other aspects of her professional career.
A trial was held July 21, but Burge failed to show up in court. He then filed documents requesting that the court reconsider his request for postponement and to file evidence related to damages, which the court did not take into consideration.
TVX’s July 28 filing argued that it was Burge’s on-going health problems that kept him from appearing in court and not the apparent “delaying tactics” the defendant’s attorney had accused him of.
In terms of the damage award, TVX’s filing said that the copyright owner is entitled to recover actual damages suffered as a result of the infringement and any profits of the infringer that are attributable to the infringement.
The filing claims TVX had a net loss of $341, after expenses and selling 133 DVDs. Therefore, the plaintiff would not be entitled to any compensation.
TVX however did remove Coton’s image, as promised, from the DVD box art and instructed retailers to do the same thing, according to Harrison.
However, Harrison says, he can’t be confident that they removed her image from all of the CD art contained inside the box.
The judge is now deciding what damage to award, if any, and will make his decision in the next couple of weeks.
Calls to Robert Burge went unanswered by post time.