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Artist Merchandise-Approval Form Doesn't Shield Live Nation From Liability for Willful Infringement of Photographer's Works
The U.S. Court of Appeals for the Ninth Circuit decided in part that a jury could reasonably find Live Nation willfully infringed on a photographer's copyrights when using his photos on Run-DMC merchandise. Friedman v. Live Nation Merchandise Inc., 14-55302. Glen Friedman sued in the Central District of California over use of photos he took of the iconic rap group in the 1980s that Live Nation included in a 2008 calendar and on several t-shirt designs. Live Nation did stipulate it had infringed, but the district court granted summary judgment to the merchandiser as to whether the infringement was willful, which could have increased infringement damages. Live Nation's artist merchandise contracts give artists such as Run-DMC approval rights over design and distribution of merchandise. However, reversing the summary judgment ruling on willfulness, the Ninth Circuit noted that a Live Nation employee claimed in a declaration “only that as an industry practice 'it is generally the responsibility of the music artists' personal managers to uncover the relevant facts and ascertain the scope of the music artists' rights.' Given an approval process that never explicitly asks about copyrights at all, a jury could reasonably conclude that Live Nation's reliance on [Run-DMC] 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.”
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