DMCA gives Walmart only a gleam of light in sculpture infringement case

Russell v. Walmart Inc., No. CV 19-5495-MWF (JCx), 2020 WL
9073046 (C.D. Cal. Oct. 16, 2020)

Russell owns registered copyrights in certain photos of
sculptures that appeared on Walmart’s marketplace. Previously, the court found
that all of Walmart’s affirmative defenses failed as a matter of law, except its
DMCA defense, which remains for trial. There were genuine disputes of material
fact as to whether Walmart was responsible for posting the photographs on the
Walmart Marketplace. [What is being infringed here: the photos or the
sculptures? Since the court concluded she owned both, that doesn’t matter for
liability; it could matter a lot for damages and whether the DMCA applies, but
the court seems uninterested.] [Looking back on previous orders in the case, it
does not seem that Walmart got the right witness for its DMCA defense; she didn’t
seem to have detailed personal knowledge of any DMCA policy, and more generally
Walmart may be running behind Amazon in dealing with third-party seller
misbehavior on its platform, despite the fact that Amazon is taking all the
heat for this kind of thing.]

Russell created four sculptural works: “Medusa,” “Polyp,”
“Hydra,” and “Ophelia”; there was a dispute about whether the sculptures
resemble or embody natural aspects of real-life jellyfish and whether Russell intentionally
designed them to look like freshwater jellyfish. Medusa seems to be the key one;
Walmart argued that the sculpture’s “sole intrinsic function is providing
light,” while Russell responded that the sculptures are works of art, “not
simply light fixtures.”

the pictures and lights in suit

The key facts around Walmart’s responsibility for
marketplace sellers have been redacted from the opinion, so it’s impossible to
tell what’s going on there. Discussions about whether the accused product was a
“poor quality replica” also include redactions, as do the discussion of
damages. “In sum, the parties do not agree on much,” but the public can have no
idea of where they diverge.

The court here concluded that there were disputed issues of
material fact on substantial similarity (and excluded a proposed expert report
from Mark McKenna). The Medusa lamp was separable from its lightbulb, so the
useful articles doctrine didn’t diminish the protection granted by copyright.
Nor was it “so lifelike in its resemblance of a jellyfish that it lacks
copyright protection.”

Though the Medusa sculpture may
borrow certain elements from jellyfish in nature, it does not appear, and was
not intended to appear, like a lifelike jellyfish. The sculpture is not held in
a glass container intended to mimic a jellyfish’s natural habitat like the
sculpture in Satava; it is oversized and hangs from the ceiling on a string connected
to the center of the sculpture. [Not sure why this fact in particular matters
to whether it’s taken from life, though the rest seems relevant.] The top piece
of the sculpture is constructed of overlapping sections of fabric, differing
significantly from the large bulbous head of an actual jellyfish. Tendrils of
varying length and patterned textures flow from the center of the sculpture,
unlike the largely uniform tentacles of an actual jellyfish.

In other words, Plaintiff’s
sculpture is “stylized and not lifelike.” Because of the “gazillions of ways to
combine” jellyfish-like elements to create a stylized, jellyfish-inspired work
of art, Plaintiff’s stylized sculpture is entitled to broad copyright
protection.

Substantial similarity: Russell argued that substantial similarity
wasn’t the appropriate test in cases involving direct copying [very wrong], but
even if that test did apply, there were genuine issues of material fact. “[T]he
lamps are the same color, have three distinct sections, have a circular top
piece constructed out of overlapping panels with curved sides and scalloped
edges, have a center part that is thicker than the bottom part, and have two
sets of long, thin tendrils with two different patterns.” A reasonable jury
could find substantial similarity.

Willful infringement: This requires actual awareness of the
infringing activity or reckless disregard/willful blindness. The photographs
posted on Walmart’s marketplace were strikingly similar to Russell’s
copyrighted pictorial works, but there was a genuine dispute of material fact
on whether Walmart was responsible for posting them, which precluded summary
judgment in Walmart’s favor on willfulness. Walmart argued something else
redacted, but those allegations were “hotly disputed,” and anyway “Plaintiff
produced evidence showing that although Walmart had [redacted]. And in November
2018, [redacted] Walmart claims that [redacted].Walmart also knew that
[redacted],” creating an inference of willful blindness/reckless disregard.
Comment: This is not law. How is anyone to use this decision to guide their
conduct with an understanding of what constitutes willful blindness or reckless
disregard?

Russell could also cover profits attributable to the
infringement, and some sort of dispute about that is redacted.

Lanham Act/unfair competition claims.  Again, there was a genuine issue of fact about
Walmart’s responsibility for the posting. Apparently on the premise that the
posting was literally false about something, if Russell proved Walmart’s
responsibility, “actual deception and materiality will be presumed.” Her damage
expert calculated that the false listings cost her thousands of dollars in lost
profits and harm to her goodwill and reputation. Not clear how she worked around Dastar.

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