Art publisher commissions original work; online printer uses it without permission. $460,800. Federal Court.

Summary

Art publisher commissions original paintings for travel posters. An online printer uses the artwork on its own merchandise despite a series of take-down letters.

The Case

  • Case Name: Greg Young Publishing, Inc. v Zazzle, Inc.
  • Court and Case Number: : US District Court, Central District of CA, Western Division / 2:16-cv-04587 (SVW)
  • Date of Verdict or Judgment: Wednesday, August 09, 2017
  • Type of Action: Earning Loss, Business, Infringement
  • Judge or Arbitrator(s): Hon. Stephen V. Wilson
  • Plaintiffs:
    Greg Young Publishing, Inc.
  • Defendants:
    Zazzle, Inc.
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $460,800
  • Award as to each Defendant:

    The jury awarded statutory damages for each of the 35 infringed works ranging from a low of $200 to a high of $66,800. Five of the infringed works received awards in amounts that signify those particular infringements were willful.

  • Trial or Arbitration Time: 2 days.
  • Jury Deliberation Time: 2 hours.
  • Jury Polls: 8-0

The Attorneys

  • Attorney for the Plaintiff:

    Law Office of Jeffrey Young by Jeffrey Young, Santa Barbara.

    Jacob Ainciart, Santa Barbara.

    Darren Quinn, Del Mar.

    Jason Aquilino, Kennesaw, GA.

  • Attorney for the Defendant:

    Murphy Pearson Bradley & Feeney by Timothy J. Halloran, San Francisco.

    Murphy Pearson Bradley & Feeney by Keith G. Adams, Los Angeles.

Facts and Background

  • Facts and Background:

    Plaintiff Greg Young Publishing, Inc. is a California-based art publisher representing several artists. Plaintiff commissioned Kerne Erickson to create a series of retro travel-themed posters. Mr. Erickson transferred the copyrights to the artwork to plaintiff whose business includes licensing the artwork for printing onto merchandise. Defendant Zazzle, Inc. is a $250 million per year on-demand printing and manufacturing company based in Redwood City, California. Third-parties (designers) upload images (artwork, photographs, drawings, etc.) to virtual stores maintained on Zazzle’s website where they can choose merchandise, e.g., clothing, calendars, mousepads, stamps, posters, stationary, coffee mugs, postcards, tote bags, etc., onto which their uploaded images may be printed once a customer orders it.

    Prior to trial, the court on summary judgment found the Digital Millennium Copyright Act (DMCA) safe harbor defense in 17 U.S.C. §512(c) inapplicable to Zazzle's manufacture and sale of physical products bearing copyright protected designs. Plaintiff had sent Zazzle several take down letters in the past and had even sent a catalog of its artwork to Zazzle at one point in time. The court ultimately found that because Zazzle had control over the infringement, due to the fact that it was manufacturing the infringing products, and because it financially benefited from its infringing manufacture and sale, the DMCA safe harbor did not apply. Plaintiff's attorneys Jeffrey Young, Jason Aquilino and Jacob Ainciart obtained the published DMCA summary judgment opinion Greg Young Publ’g, Inc. v. Zazzle, Inc., 2017 U.S. Dist. LEXIS 100268 (C.D. Cal. May 1, 2017). The court held that Zazzle’s DMCA defense could apply to images displayed on Zazzle’s website and never printed on physical products. Plaintiff ultimately did not pursue claims as to those images at trial. In addition, on summary judgment, the court ruled that Plaintiff did not have standing to pursue infringement claims, as alleged in the complaint, on behalf of Scott Westmoreland and artist exclusively represented by plaintiff.

    At trial, plaintiff's counsel Jeffrey Young presented evidence of plaintiff's copyrights, numerous notices to Zazzle Inc. of infringements, and Zazzle Inc. manufacturing and selling over 2,200 infringing physical products. Plaintiff's counsel Darren Quinn presented evidence of Zazzle Inc's willful blindness or reckless disregard regarding Zazzle Inc's economic decision not to use or license reverse-image search technology.

  • Plaintiff's Contentions:

    Plaintiff claimed defendant violated its copyrights to 35 works of art painted by artist Kerne Erickson. Plaintiff elected to proceed at trial seeking statutory damages under 17 USC 504, in lieu of defendant’s profits and plaintiff’s actual damages.

  • Defendant's Contentions:

    At trial their contention was that the appropriate award for infringement was in the range of $2,000 to $4,000 for each of the 35 paintings, a range at the low end of the statutory damages range per statute, based upon Zazzle’s infringing sales (less than $6,000) and plaintiff’s demonstrated royalties for the works in question.

    The defendant also argued that eight of the 35 paintings were copies of existing artwork and shouldn't have been issued copyright registrations by the US Copyright Office. 

     

     

Demands and Offers

  • Defendant Final Offer before Trial: Defendant’s initial offer to settle was $36,000 filed as an Offer of Judgment under Rule 68(b). Defendant’s last final Offer of Judgment offer before trial was $525,000.

Additional Notes

Copyright is based on strict liability so a negligence type of analysis doesn't take place. The focus becomes one of determining culpability of the infringer, value of the infringed artwork, and circumstances of the infringement. Consequently, there are a number of factors for the trier of fact to consider. 

Plaintiff will file a motion for attorney’s fees and costs under 17 USC section 505 which, if granted, could increase the judgment by approximately another $400,000. Plaintiff filed a motion for injunctive relief to address defendant’s continued violations of plaintiff’s copyrights under 17 USC section 503. Defendant filed a motion for judgment as a matter of law under FRCP Rules 50 and 59 as to whether five of the infringements were willful and worthy of awards greater than $30,000.

Disclaimer

This is not an official court document. While the publisher believes the information to be accurate, the publisher does not guarantee it and the reader is advised not to rely upon it without consulting the official court documents or the attorneys of record in this matter who are listed above.

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