Intellectual Property Expert’s Fair Use Opinion Admitted
Posted on January 9, 2026 by Expert Witness Profiler
The Volga German people are individuals of German origin who moved to the Volga region of Russia in the eighteenth century. Many of the descendants of the Volga German people have moved to other parts of the world after persecution of Germans in Russia. There is a sizable Volga German diaspora
in the American Midwest. Plaintiff Margreatha Hein and Defendant Dr. Brent Mai are both genealogy researchers on the Volga German people. Their research is the subject of this lawsuit.
This case centers on whether Mai committed copyright infringement on Hein’s alleged work and whether there are damages due to the alleged infringement.
Defendant filed a motion to exclude the testimony of Plaintiffs’ expert, Dr. Kenneth D. Crews.
Intellectual Property Expert Witness
Kenneth Donald Crews is a law professor with substantial professional expertise in copyright law. Crews has been a scholar of intellectual property law since at least 2000. He possesses a PhD in Library and Information Science; he published his dissertation on copyright law and policy.
He has published five books on copyright and a great number of other publications.
Discussion by the Court
Crews’ report contended that Hein’s photographs and textual compilations are the proper subject of copyright and have been infringed upon by Mai. His report compared Mai’s reproductions of Hein’s textual compilations to the originals. Crews also opined that Plaintiffs have had their Lanham Act and unfair competition rights violated by Mai’s listing of Hein as a “researcher” or “contributor.” Crews also provided background on the Copyright Act, the process of registering copyrights, and the remedies that are available to injured holders of copyrighted material. Finally, Crews provided a supplemental declaration expressing his opinion that none of Mai’s usage of Hein’s work is protected by the defense of “fair use.”
Mai sought to exclude Crews’ testimony for several reasons including: (1) that Crews did not have the necessary genealogy experience to qualify as an expert; (2) that Crews’ testimony failed all of the Daubert factors; (3) Crews’ testimony offers improper legal conclusions and legal interpretations and thus intrudes on the province of the Court and the jury; and (4) that part of Crews’ testimony was not timely disclosed.
Analysis
Defendant first argued that Crews is not trained as a genealogist and therefore lacked the expertise necessary for him to testify in this matter. However, copyright law is what Crews sought to testify about, not the specifics of genealogy research, which are not at issue in this case.
At the very beginning of the report Crews informed the reader that his work will “follow the basic structure of a copyright infringement case.” His report’s methodology is apparently just the three elements of copyright infringement. It is hard to see how this is not “discoursing broadly over the entire range of applicable law.”
While the Court does not doubt Crews’ familiarity with copyright law, ultimate issues of law are for the judge to instruct on and the jury to decide upon. An expert witness, even a law professor, cannot be a substitute teacher for the Court.
Crews did not aid the Court in understanding a disputed question of fact but instead his report indicates he “states legal conclusions drawn by applying the law to the facts.” That said, some of Crews’ report is helpful background on the process of obtaining and defending a copyright.
Finally, Defendant contended that Crews’ opinion on “fair use,” added through his supplemental declaration, was not timely disclosed. The prejudice was largely self-curing as Defendant has been in possession of Crews’ fair use opinion several months before trial and there was no evidence the delayed disclosure will disrupt the trial. As a result, the Court found it unlikely that Defendant was prejudiced by the late disclosure of Crews’ fair use opinion.
Held
The Court granted in part and denied in part the Defendant’s motion
to exclude the testimony of Kenneth Crews.
Key Takeaway
The Court will permit Crews to testify at trial but noted that he will not be allowed to testify on matters relating to ultimate legal issues in the case. Defendant may raise objections at trial to testimony he believes strays into legal conclusions. This balance cautiously tracks the line of Rule 702(a), that expert testimony is primarily intended to “help the trier of fact to understand the evidence or to determine a fact in issue.”
Case Details:
| Case Caption: | Hein V. Brent Mai |
| Docket Number: | 6:24cv1126 |
| Court Name: | United States District Court, Kansas |
| Order Date: | January 07, 2026 |
