Run-DMC Tees, $3M and Counting, for Live Nation

     PASADENA, Calif. (CN) — The Ninth Circuit exposed Live Nation to more damages Thursday for the concert giant’s unauthorized use of copyrighted Run-DMC images.
     One of the best-known hip-hop acts in history, Run-DMC was founded in 1981 by its namesakes Rev Run and DMC, along with the late Jam Master Jay.
     In 2008, the group signed off on Live Nation’s request to use various images of them in a calendar and three T-shirt designs.
     It turned out, however, that Run-DMC did not own all the images.
     Glen Friedman, a photographer who shot the group in the 1980s, in turn sued Live Nation for violating his copyright.
     Live Nation eventually admitted to infringing on Friedman’s copyright but maintained that it had not done so willfully.
     A federal judge cleared Live Nation of the willful-infringement charge at summary judgment, and decided that Friedman deserved $3.12 million in damages.
     The Ninth Circuit overturned that ruling Thursday, however, saying the question of Live Nation’s infringement being willful should have gone to trial.
     “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,” U.S. Circuit Judge Marsha Berzon wrote for a three-person panel.
     The panel found it significant that the product-approval forms Live Nation offered said “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,” Berzon wrote. “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.”
     Live Nation contends that it is the responsibility of artists to make sure they are not approving the use of material for which they do not have the copyright.
     But Berzon says there is no evidence on the record right now that Live Nation ever told Run-DMC about this protocol.
     “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,” Berzon wrote.
     Live Nation also argues that it took special precaution not to infringe on Friedman’s rights in particular. It offered as evidence an email from one of its employees saying that the company did not want to use any Friedman images because he owned all the copyrights, and they were expensive.
     “But,” Berzon wrote, “a jury could as plausibly understand it to demonstrate that Live Nation knew there was a risk that photos of Run-DMC would be Friedman’s photos, but nonetheless went forward with developing the merchandise without taking steps to ascertain whether it featured Friedman’s work.”
     The Ninth Circuit also revived Friedman’s claim under section 1202(b) of the Digital Millennium Copyright Act regarding removal of copyright management information.
     Berzon said Friedman could prevail on this issue if Live Nation distributed his work with the knowledge that the information had been removed by someone else.
     Live Nation has never stated how it acquired the photos, according to the ruling, and Friedman offered evidence that some of the photos on their merchandise and in their style guides strongly resemble the versions he licensed to Sony and published in his book — versions that included the copyright management information.
     “How Live Nation came to possess Friedman’s photographs — and thus whether it had knowledge that the CMI had been removed — is a fact ‘particularly within’ Live Nation’s knowledge,” Berzon wrote. “It would be unfair to burden Friedman at the summary judgment stage with proving that knowledge with greater specificity than he did.”
     Though the willfulness question does open up Live Nation to additional damages, the court upheld the scheme set by the trial court for statutory damages — namely letting Friedman collect only on one statutory damages award per image.
     Friedman had claimed that he deserves more based on the retailers selling Live Nation merchandise.
     But Berzon said such relief would require Friedman to “join the alleged downstream infringers in the action and prove their liability for infringement.”
     Douglas Linde, a Los Angeles-based attorney for Friedman, declined a request to comment on the ruling.
     Live Nation’s attorney, Matthew Gershman with Greenberg Traurig in Los Angeles, did not return an email or phone call seeking comment.

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