A federal appeals court has ruled that a lower court erred when it dismissed photographer Glen E. Friedman‘s willful copyright infringement claims against Live Nation Merchandising in 2014. The United States Court of Appeals for the Ninth Circuit said evidence in the case suggests willful infringement, and that Friedman may be entitled to more damages. The case has been sent back to the lower court, where Friedman is awaiting a trial date to pursue the willful infringement and CMI violations, according to his attorneys.
Friedman sued Live Nation in 2012 after he discovered the merchandising company used four of his images in a wall calendar, and also used his images of Run-DMC for three t-shirts. The U.S. District Court in Los Angeles ruled in 2014 that Live Nation had violated Friedman’s copyright. The district court decided, however, that Friedman hadn’t provided sufficient evidence to establish that Live Nation knew it was using his work without permission and removing his CMI (copyright information). A settlement for non-willful copyright infringement was agreed, pending the outcome of the appeals process.
The appellate court cited two factors in reversing that decision in August, and suggesting there was evidence that Live Nation willfully infringed Friedman’s images. Live Nation Merchandise’s image approval procedures do not explicitly ask artists if they own the copyright for, or have licenses to use, the images they supply to the merchandising company. Live Nation alleged that they obtained Friedman’s photos from Run-DMC, but did not ask the group if they had permission to use the images. In the appellate court’s opinion, one of the judges wrote that “A jury could reasonably conclude that Live Nation’s approval procedures amounted to recklessness or willful blindness with respect to Friedman’s intellectual property rights. Live Nation’s Product Approval Forms say nothing whatsoever about establishing or reporting on who holds the rights to the images whose use is proposed.”
The second factor the court cited was an internal Live Nation email in which an employee wrote that the company should not use Friedman’s images because Friedman “owns all the rights to his photos” and didn’t want to use them for merchandising.
On the issue of removing Friedman’s CMI, the appellate court ruled that there was enough evidence to suggest that a jury could find that Live Nation distributed Friedman’s works “knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law,” which is a violation of the Digital Millennium Copyright Act. In its decision, the appellate court noted that Live Nation did not have to physically remove Friedman’s CMI information themselves (i.e. crop his copyright marks out of a photo) to be liable for CMI violations, although evidence also suggested the images Live Nation used were scanned from Friedman’s books and lifted from a Sony website offering computer wallpapers of Friedman’s Run-DMC images. “A reasonable jury could certainly conclude that Live Nation had knowledge that photographs are often copyrighted,” the appellate court wrote in it’s decision. Once again, it used the internal email to suggest Live Nation, at the very least, knew “Friedman himself often held the copyrights to photographs of Run-DMC.”
The court of appeals did affirm the district court’s ruling that Friedman could not seek statutory damages based on the number of retailers who bought the t-shirts and calendars. Friedman sought $3,120,000 in damages based on the fact that 71 retailers purchased t-shirts, and 33 retailers purchased calendars. Friedman argued that he should receive $30,000 for each of these “downstream infringements.” The district court ruled that Friedman would have had to name each of the retailers as defendants in the suit and prove their guilt in order to receive damages. The district court ruled—and appellate court upheld—that Friedman was “entitled to only one statutory damages award per infringed work.”