Damages for Infringement-Induced Depression?

An interesting decision by Judge Haight in the Southern District this week (no free link that I can find, but NYLJ subscribers can access the decision, Gary Price Studios Inc. v. Randolph Rose Collection Inc., here), excluding proffered expert witness testimony as to the overall "productivity loss" caused by defendant's alleged copyright infringement. The case involves four bronze sculptures that were allegedly infringed. The expert was prepared to testify that the artist's "awareness of Defendants' alleged infringements so distracted and diverted him that [his] creative focus and energies were diminished and the number of his created sculptures were consequently reduced." Noting that "such a damages theory leads inevitably to the highly subjective and personal subtleties and mysteries of artistic creation," and quoting a Wordsworth sonnet, Judge Haight rejected the proposed testimony "without difficulty": "The services of the sensitive mind and heart demanded by Creative Art are subject to inexplicable obstacles. ... In my view, the ... productivity loss theory advanced by [the expert] cannot be tested within the context of the mysterious ebb and flow of an artist's creative powers." On the other hand . . . Judge Haight did not hold that copyright damages could never include this sort of productivity loss -- just that expert testimony could not be introduced on the subject: "The jury is capable without assistance from [the proffered expert] to determine [if] Defendants' conduct served to diminish Price's creative output, and, if it finds such effect occurred, to determine Plaintiffs' resulting economic loss on the basis of the fact witnesses available to Plaintiff and the Court's instructions on the law of damages in copyright infringement cases."