Questions Whether LiveNation Willfully Infringed Run-DMC Photos; 9th Cir.

Friedman v. Live Nation Merch., No. 14-55302 (9th Cir. Aug. 18, 2016).

In a copyright dispute over the use of photographs that the plaintiff took of the hip hop group Run-DMC, defendant Live Nation stipulated that it infringed the plaintiff photographer's copyrights when it used his photos without his authorization on t-shirts and a calendar.  Before the 9th Circuit was the question of whether there was sufficient evidence in the record to permit a jury to conclude that Live Nation committed willful copyright infringement, making it liable for additional damages under 17 U.S.C. § 504(c)(2); whether a jury could conclude that Live Nation knowingly removed copyright management information (“CMI”) from the photographs in violation of 17 U.S.C. § 1202(b) [the DMCA]; and whether the plaintiff could recover statutory damages awards under section 504 of the Copyright Act measured by the number of retailers who purchased infringing merchandise from Live Nation, even though the plaintiff photographer did not join those retailers as defendants in his suit.

The 9th Circuit held: (1) that there was a triable issue of fact as to whether Live Nation’s infringement was willful, and that the district court therefore erred in granting summary judgment to Live Nation on willfulness; (2) the plaintiff photographer could prevail upon a showing that Live Nation distributed his works with knowledge that copyright management information had been removed, even if Live Nation did not remove it, and accordingly summary judgment should not have been granted because there was a triable issue of fact as to whether Live Nation distributed the photographs with the requisite knowledge; and (3) the district court correctly held that the plaintiff photographer was limited to one award per work infringed by Live Nation because he did not name any of the alleged downstream infringers as defendants in the case ("A plaintiff seeking separate damages awards on the basis of downstream infringement must join the alleged downstream infringers in the action and prove their liability for infringement. ").  Notably, on third question involving downstream infringers, the 9th Circuit rejected a "mass marketing" exception that some lower courts had adopted.