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Friedman v. Live Nation

By Fabien Thayamballi

On August 18th, the Ninth Circuit issued an opinion in which it reversed a summary judgment ruling that dismissed a claim of willful copyright infringement (opinion attached). It explained: "On the current record, 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 forms only include fields indicating the manufacturer of the proposed product, the artist represented, and the suggested price, along with space for unspecified "comments" by Live Nation and the artist. From the face of the documents, one could conclude that they are directed at design decisions, not the rights to the photographs. Nor do the specific forms signed by Run-DMC indicate in any way that the group was clearing the legal right to use the photographs, on their own behalf or anyone else's."

Given an approval process that never explicitly asks about copyrights at all, a jury could reasonably conclude that Live Nation's reliance on the artists who were the subjects of the photographs at issue to clear photographic rights, rather than on the photographers who took them -- based only on a purported industry practice never reflected in any document -- amounted to recklessness or willful disregard, and thus willfulness.

The Court also found that there was an issue of fact as to whether Live Nation "knew of the removal of the CMI", even though it did not remove the CMI itself, because "a reasonable jury could certainly conclude that Live Nation had knowledge that photographs are often copyrighted." The Court also held that the plaintiff was entitled to only one award of statutory damages despite numerous "downstream" infringements.

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