PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KENNETH L. BONNER, SR., 

Plaintiff-Appellant,

v.  No. 04-1440

BRUCE DAWSON; TERRY BISHOP,

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of Virginia, at Harrisonburg.

Glen E. Conrad, District Judge.

(CA-02-65-GEC)

Argued: February 1, 2005

Decided: April 14, 2005

Before MICHAEL and DUNCAN, Circuit Judges,

and Robert E. PAYNE, United States District Judge

for the Eastern District of Virginia,

sitting by designation.

Affirmed by published opinion. Judge Duncan wrote the opinion, in

which Judge Michael and Judge Payne joined. 

COUNSEL

ARGUED: Robert Neal Cook, WHITHAM, CURTIS & CHRISTOFFERSON, P.C., Reston, Virginia, for Appellant. Phillip Stone Griffin,

II, PHILLIP S. GRIFFIN, II, P.C., Winchester, Virginia, for Appellees. ON BRIEF: Michael E. Whitham, WHITHAM, CURTIS &
CHRISTOFFERSON, P.C., Reston, Virginia, for Appellant. Peter

Thomas Hansen, PHILLIP S. GRIFFIN, II, P.C., Winchester, Virginia, for Appellees. 

OPINION

DUNCAN, Circuit Judge: 

Plaintiff Kenneth Bonner brought this action in the United States

District Court for the Western District of Virginia, seeking to recover

so-called "infringer’s profits" under 17 U.S.C. § 504(b) for the

infringement of his copyrighted work. After a trial on the issue of

damages, in which the jury awarded Bonner $10,707 in actual damages but no infringer’s profits, Bonner filed a Rule 50(b) motion for

judgment as a matter of law. Because we find that substantial evidence exists to support the jury’s verdict, we affirm the order of the

district court denying Bonner’s motion.

I.

Most of the relevant facts are undisputed. Kenneth Bonner is a selfemployed architect and the owner of Bonner Metropolitan Architectural Group in Reston, Virginia. In 1998, Bonner was hired by the

American Woodmark Corporation ("Woodmark") to select a site for

and design the company’s new customer service center. After looking

at various sites, Bonner recommended to Woodmark that it build its

service center on a parcel of land owned by Dawson Investments

("Dawson"). Dawson entered into a lease agreement with Woodmark

and hired Terry Bishop to perform the construction work necessary

for the development of the new center. 

Bonner drafted a design proposal for the new building, and this

proposal became the basis for the building’s final design. After

Woodmark accepted Bonner’s design, the parties agreed to a contract

in which Bonner would be paid seventy dollars an hour for his architectural services. This agreement resulted in a final fee of $35,690.

While the contract did not contain a specific section articulating

which of the two parties owned the rights to the design, each page of

2 BONNER v. DAWSON
the design proposal bore a Kenneth Bonner copyright seal. Bishop

and his subcontractors erected the building based upon these design

blueprints. At that point the relationship between Bonner and Woodmark, Dawson and Bishop ended. 

Pleased with the customer service center constructed by Bishop,

Woodmark contacted Dawson to request the construction of a second

building immediately adjacent for use as the company’s computer

center. Woodmark requested that the second building be similar in

color and style to the first, but that it be a bit larger and have a distinct

interior floor plan. Dawson agreed to build the second building and,

once again, hired Bishop for the construction. However, no one notified or contacted Bonner. Dawson and Bishop both acknowledged to

the district court that Bonner’s design was used as the basis for the

second building, but they nevertheless did not contact him or any

other architect. The second building was completed in December,

2001. 

After driving past the original building, Bonner noticed that a second building, the computer center, had been built immediately adjacent with a design that seemed identical to the first. Suspecting a

possible copyright violation, Bonner submitted his set of drawings for

the first building to the United States Copyright Office. Bonner’s

copyright was registered on April 10, 2002. He then filed a complaint

in the United States District Court for the Western District of Virginia

on July 22, 2002, alleging copyright infringement in violation of the

Architectural Works Protection Act of 1990 ("AWCPA"), 17 U.S.C.

§ 102(a). Specifically, Bonner requested that he be deemed the rightful copyright owner of the design of the second building and that

Dawson and Bishop be required to pay actual damages and lost "infringer’s profits" under 17 U.S.C. § 504(b). (JA 9004).

The matter was referred to a magistrate judge for proposed findings

of fact, conclusions of law, and a recommended disposition. On

August 21, 2003, the magistrate judge granted in part and denied in

part Bonner’s motion for summary judgment. He held that Bonner

possessed a valid copyright on the design of the first building based

on the copyright notice attached to all design documents he submitted

to the defendants during the process. The magistrate judge further

found that the copyright was violated, relying in part on the testimony

BONNER v. DAWSON 3
of the defendant’s own expert that the two buildings were "substantially similar." He determined that while additional facts were needed

to determine the scope of Bonner’s actual damages under § 504(b),

Bonner’s claim for infringer’s profits was barred as a matter of law

because no causal link could be found between Dawson and Bishop’s

profits and the copyright infringement. 

Both parties then requested a review of the magistrate judge’s ruling by the district court. On October 14, 2003, the district court

granted the plaintiff’s motion for summary judgment on the issue of

liability for substantially the same reasons as those relied upon by the

magistrate judge. However, he declined to adopt the magistrate

judge’s recommendation on the issue of damages. The district court

agreed with the magistrate judge that the actual damages issue should

be tried to a jury, but also held that facts could still be found to allow

recovery of infringer’s profits as well. The district court determined

that it was possible for Bonner to prove that some portion of Dawson

and Bishop’s profits was attributable to the infringement. After a trial

solely on the issue of damages, a jury awarded Bonner actual damages in the amount of $10,707, but found that he was not entitled to

infringer’s profits. 

Following trial, Bonner filed motions in district court for a new

trial and judgment as a matter of law under Federal Rules of Civil

Procedure 59 and 50(b), respectively. The court denied the Rule 59

motion, holding that Bonner had not satisfied the requirement for a

new trial based on new evidence, the only one of the three grounds

for a Rule 59 motion that Bonner had pled. The court also denied the

Rule 50(b) motion for Judgment as a Matter of Law on two grounds.

First, the court held that Bonner had the burden of showing a causal

link between the infringement and the profits incurred, a link that the

jury could have reasonably determined he had not shown. Second,

even if such a link were found, the court held that the jury could have

reasonably determined that Dawson and Bishop satisfied their burden

to show that the profits were derived from sources other than the

infringement. Bonner appeals the court’s decision on his Rule 50(b)

motion, but did not appeal the denial of his motion for a new trial. It

is thus only the limited question as to whether Bonner is entitled to

judgment as a matter of law that we now review.

4 BONNER v. DAWSON
II.

We review the denial of a motion for judgment as a matter of law

de novo. Figg v. Schroeder, 312 F.3d 625, 635 (4th Cir. 2002).

Because the issue of defendants’ liability has been determined by the

district court and was never appealed, the only question before us is

whether Bonner is entitled to receive infringer’s profits under the

Copyright Act as a matter of law.1

Section 504(b) of the Copyright Act entitles a successful copyright

plaintiff to recover any "actual damages" suffered by him and "any

profits of the infringer that are attributable to the infringement." 17

U.S.C. § 504(b). The statute creates a burden-shifting provision, stating:

"[i]n establishing the infringer’s profits, the copyright owner

is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her

deductible expenses and the elements of profit attributable

to factors other than the copyrighted work."

Id. Thus, as in this case, once liability has been shown, § 504(b)

creates an initial presumption that the infringer’s "profits . . . attributable to the infringement" are equal to its gross revenue. See Konor

Enters., Inc. v. Eagle Publ’ns, Inc., 878 F.2d 138, 140 (4th Cir. 1989).

Once the copyright owner establishes the gross revenue, the burden

shifts to the infringer to show that its revenue was "attributable to factors other than the copyrighted work." Id. (quoting Section 504(b)).

In meeting its initial burden, however, a copyright holder must

show more than the infringer’s total gross revenue from all of its

profit streams. We have previously determined that a literal interpretation of "gross revenue" in § 504(b) to include all profits produced

by an infringer, no matter the source, would be incorrect. Bouchat v.

1The limited nature of this appeal did not seem apparent to the Appellees, who spent much of their brief and oral argument attempting to

attack Bonner’s qualifications as an architect and argue the dissimilarities between the two designed buildings. Neither of these issues is before

us on appeal. 

BONNER v. DAWSON 5
Balt. Ravens Football Club, Inc., 346 F.3d 514, 520-22 (4th Cir.

2003). Rather, "gross revenue" refers only to revenue reasonably

related to the infringement. Id. at 521. The copyright owner thus has

the burden of demonstrating some causal link between the infringement and the particular profit stream before the burden-shifting provisions of § 504(b) apply. Id.

The district court found that no such connection existed here, holding that Bonner had produced no evidence "that defendants’ gross

revenues were causally connected to the infringement of plaintiff’s

architectural designs." (JA 9048). The court acknowledged that Bonner had presented evidence that Dawson and Bishop had built and

leased the building at issue, and that the profit stream established by

Bonner derived from the building itself. Nevertheless, the court found

this evidence was not sufficient to satisfy the "causal connection"

requirement articulated in Bouchart, because it was not clear that the

basis for the profits was the particularized design of the building. In

doing so, however, the court misinterpreted the level of connection

between infringement and profits that is required under Bouchart.

Bonner produced evidence of the profits generated by the leasing

agreements in the infringed building. This amount was derived exclusively from the infringed building; no other source contributed to the

generated funds. The building generating the funds was designed

based upon Bonner’s copyright. This is sufficient to satisfy Bouchart’s requirement of a "causal connection" between the infringement and the profit stream. 

In Bouchart, we were concerned about the holder of a copyright of

the Baltimore Ravens logo being able to recover from profit streams

that had little or nothing to do with the franchise’s logo, such as those

generated by media rights and game-day parking. Bouchart, 346 F.3d

at 523. We held that these "non-merchandise" revenues had no conceivable connection to the logo printed on team apparel, and thus

were not part of the "gross revenue" intended under § 504(b). Id.

Here, the profits at issue are not generated by outside sources, but by

money collected from the use of the specific infringed work. To

require Bonner to show more of a connection than this in order to satisfy his burden would be to effectively eliminate the burden-shifting

provision of § 504(b) and place the entire burden on the copyright

holder. This was not the intent of Bouchart or § 504(b).

6 BONNER v. DAWSON
Thus, the district court erred in concluding that Bonner did not

meet his burden of establishing the required causal connection under

§ 504(b) as a matter of law. However, Bonner asks us to find that he

not only met his preliminary burden, but also that he is entitled to

judgment as a matter of law on the question of Dawson and Bishop’s

ability to show that their profits were derived from sources other than

the infringement. This we cannot do.

In order to prevail on a Rule 50(b) motion, the court must determine "without weighing the evidence or considering the credibility of

the witnesses, that substantial evidence does not support the jury’s

findings." S. Atl. Ltd. P’ship of Tennessee L.P. v. Riese, 284 F.3d 518,

532 (4th Cir. 2002) (internal quotes omitted). A court should only

grant such a motion if it determines that "the only conclusion a reasonable trier of fact could draw from the evidence is in favor of the

moving party." Figg, 312 F.3d at 635. Once Bonner met his burden

under § 504(b), it was incumbent upon Dawson and Bishop to show

that their profits were "attributable to factors other than the copyrighted work." 17 U.S.C. § 504(b). Dawson and Bishop presented a

great deal of evidence to the jury that could have led to such a determination. For example, there is testimony in the record from Woodmark that it would have wanted the building built and would have

gone forward with the lease even if a different facade had been used.

Various witnesses testified that the company was primarily concerned

about the need for additional space, and that the focus was on the interior design and setup of the building. 

A reasonable trier of fact could have concluded that the basis of the

profits that Dawson and Bishop obtained from the construction and

leasing of the building was unrelated to the exterior design provided

by Bonner, and rather reflected other concerns. There is enough evidence in the record to support a determination that Dawson and

Bishop satisfied their § 504(b) burden and thus to support the jury’s

verdict. 

In reviewing a Rule 50(b) motion we simply determine whether

substantial evidence supports the jury’s verdict. We conclude here

that it does.2 The order of the district court is 

2The fact that Bonner’s appeal was limited to his Rule 50(b) motion

has circumscribed our remedy. Had Bonner also appealed the denial of

BONNER v. DAWSON 7
AFFIRMED.

his Rule 59 motion for a new trial, he might have argued that due to the

district court’s incorrect determination that Bonner had not sustained his

§ 504(b) burden as a matter of law, he was entitled to a new trial.

Because it is possible that the jury did not even reach the question of

whether defendants had evidence that their profits were attributable to

factors other than the infringement, and instead mistakenly concluded

that Bonner did not sustain his initial burden, a new trial might have been

appropriate. 

8 BONNER v. DAWSON