Don’t Give a Hoot: Expert Witness Qualifications
By Both parties produce plastic sculptures of owls that are often used to rid buildings or portions of property of the nuisance of the wildlife by frightening the wildlife, such as birds and rodents. The parties also assert that their owls are used extensively for indoor and outdoor decoration and for events like Halloween.
The Plaintiff is the sole owner of all copyrights in a three-dimensional sculpture entitled “Great Horned Owl,” also known as “the Dalen Owl.” The Plaintiff alleged that the Defendants manufactured, reproduced, publicly displayed, sold, and distributed a product known as, “Harold Hoot.” The Plaintiff alleged that Harold Hoot is a copy and/or a derivative work of the Dalen Owl and that Harold Hoot incorporates substantial portions of the Dalen Owl. Accordingly the Plaintiff brought a copyright infringement suit to protect the Dalen Owl from its natural rival, Harold Hoot. With that the battle of the plastic owls was joined.
The Plaintiff challenged the qualifications of the defendant’s expert witness who planned to offer expert testimony on the portion of sales attributable to the unique features and or expressions of, Harold Hoot. Specifically, he would testify regarding the effect of the owl’s “animation” and “whimsy” on its sales. The Court found it difficult to comprehend that many people have expertise in determining the profits attributable to unique features of plastic owl sculptures meant for pest control, holiday use, decoration, and/or novelty. Nevertheless, the Court found that the expert met the threshold level of qualification to give opinion testimony regarding profits within the owl sculpture business. The court while citing Daubert, did not address the Daubert standards in detail, merely finding that the testimony would more than likely aid a jury and thus be admissible. The Court observed that cross examination could reveal any deficiencies in the opinion. Dalen Products, Inc. v. Harbor Freight Tools, USA, et al., 2010 WL 3083543 (E.D.Tenn. Aug. 5, 2010).
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