FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DESIRE, LLC, a California limited 

liability company,

Plaintiff-Appellee,

v.

MANNA TEXTILES, INC., a New York 

corporation; A.B.N., INC., DBA 

Wearever, Inc., a New York 

corporation; TOP FASHION OF N.Y.,

INC., a New York corporation; Pride 

& Joys, Inc., a New York 

corporation; 618 MAIN CLOTHING 

CORP., DBA 10 Spot, DBA Madgra, 

a New Jersey corporation,

Defendants-Appellants.

No. 17-56641

D.C. No.

2:16-cv-04295-

DMG-JEM

OPINION

Appeal from the United States District Court

for the Central District of California

Dolly M. Gee, District Judge, Presiding

Argued and Submitted March 5, 2019

Pasadena, California

Filed February 2, 2021
2 DESIRE V. MANNA TEXTILES

Before: Kim McLane Wardlaw and Mark J. Bennett, 

Circuit Judges, and William K. Sessions III,*

District Judge.

Opinion by Judge Bennett;

Partial Concurrence and Partial Dissent by Judge Wardlaw

SUMMARY**

Copyright

The panel affirmed in part, reversed in part, and vacated 

a judgment in favor of the plaintiff and remanded for further 

proceedings in a copyright infringement action.

The district court held, on summary judgment, that 

plaintiff, a fabric supplier, owned a valid copyright in a floral 

print textile design and that the design was entitled to broad 

copyright protection. A jury returned a verdict for plaintiff, 

finding that three defendants willfully infringed the design 

and a fourth innocently infringed it. Plaintiff elected to 

claim statutory damages in lieu of actual damages, and the 

district court assessed five statutory damages awards.

Affirming in part, the panel concluded that plaintiff 

owned a valid copyright. The panel held that regardless of 

the design’s similarity to other designs, the design was 

* The Honorable William K. Sessions III, United States District 

Judge for the District of Vermont, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
DESIRE V. MANNA TEXTILES 3

original because it was independently created. Further, the 

design possessed the necessary “modicum of creativity” to 

be entitled to a valid copyright. The panel also held that the 

district court correctly extended broad copyright protection 

to the design as a matter of law because the flowers and the 

arrangement of those flowers was stylized, the design was 

an original creation, and there is a wide range of expression 

for selecting, coordinating, and arranging floral elements in 

stylized fabric designs.

Reversing in part, the panel held that the district court 

erred in permitting multiple awards of statutory damages. 

The panel held that the district court correctly apportioned 

joint and several liability among all defendants on the 

grounds that (1) where an upstream defendant causes a 

downstream defendant’s infringement, the upstream 

defendant is a joint tortfeasor in, and therefore jointly and 

severally liable for, the plaintiff’s harm caused by the 

downstream defendant’s conduct; and (2) where a 

downstream infringer’s conduct is not the legal cause of the 

upstream defendant’s infringement, the downstream 

infringer will not be responsible, jointly and severally, for 

the upstream defendant’s wrongdoing. Nonetheless, the 

Copyright Act permitted only one award of statutory 

damages under 17 U.S.C. § 504(c)(1) because defendants 

infringed only one work. The panel held that the Act did not 

authorize the district court to issue multiple statutory 

damages awards where one infringer was jointly and 

severally liable with all other infringers, but the other 

infringers were not completely jointly and severally liable 

with one another. The panel vacated the district court’s 

judgment awarding plaintiff multiple awards of statutory 

damages and remanded for further proceedings.
4 DESIRE V. MANNA TEXTILES

Concurring in part and dissenting in part, Judge Wardlaw 

dissented from the majority’s conclusion that plaintiff was 

entitled to only one award of statutory damages against the 

five defendants whom the jury concluded separately 

infringed varying exclusive rights in copyright. Judge 

Wardlaw wrote that it was unnecessary for the majority to 

reach the question because none of the five separate, 

independently liable, copyright infringers was actually 

found jointly and severally liable with one another. Further, 

the majority’s rule was contrary to controlling Ninth Circuit 

precedent on statutory damages in copyright, was an atextual 

reading of the Copyright Act, and created perverse 

incentives for copyright litigation.

COUNSEL

Aaron L. Renfro (argued), Samuel G. Brooks, Melinda 

Evans, and Scott P. Shaw, Call & Jensen APC, Newport 

Beach, California, for Defendants-Appellants.

Stephen M. Doniger (argued) and Frank Gregory Casella,

Doniger Burroughs, Venice, California, for PlaintiffAppellee.
DESIRE V. MANNA TEXTILES 5

OPINION

BENNETT, Circuit Judge:

Desire, LLC (“Desire”) sued Manna Textiles, Inc. 

(“Manna”), A.B.N., Inc. (“ABN”), Top Fashion of N.Y., Inc. 

(“Top Fashion”), Pride & Joys, Inc. (“Pride & Joys”), and 

618 Main Clothing Corp. (“618 Main”), as well as others 

who are no longer parties, for copyright infringement. The 

district court held, on summary judgment, that Desire owned 

a valid copyright in the fabric design that was the subject of 

the action (the “Subject Design”), and that the Subject 

Design was entitled to broad copyright protection. The jury 

returned a verdict for Desire, finding that Manna, ABN, and 

Top Fashion willfully infringed the Subject Design, and that 

Pride & Joys and 618 Main innocently infringed the Subject 

Design. Desire elected to claim statutory damages in lieu of 

actual damages, and the district court, based on a pretrial 

ruling on the question, assessed five statutory damages 

awards totaling $480,000 (with that entire amount assessed 

jointly and severally against Manna).

On appeal, Manna, ABN, and Top Fashion challenge the 

district court’s orders on summary judgment as well as its 

holding that Desire is entitled to receive multiple awards of 

statutory damages. Although we hold that the district court 

did not err in granting summary judgment for Desire on the 

validity of its copyright and the scope of the Subject 

Design’s copyright protection, we disagree with the district 

court’s holding that Desire is entitled to multiple statutory 

damages awards. We therefore affirm in part, reverse in part, 

vacate the judgment awarding Desire multiple awards of 

statutory damages, and remand to the district court for 

further proceedings.
6 DESIRE V. MANNA TEXTILES

I. FACTUAL BACKGROUND AND PROCEEDINGS 

BELOW

Desire is a Los Angeles-based fabric supplier. Desire 

purchased the Subject Design, which is a two-dimensional 

floral print textile design identified as “CC3460,” and all 

rights to the Subject Design from Cake Studios, Inc. 

(“Cake”) for $475. Desire registered the Subject Design with 

the United States Copyright Office on June 26, 2015.

A Cake designer “created [the Subject Design] using 

their own imagery” in Adobe Photoshop. “CC3460 is an 

original pattern created in Adobe Photoshop using an 

original flower image created by [a Cake] designer which 

was then imported into Photoshop so that the Photoshop 

editing tools could be used to adjust, stylize and arrange the 

floral elements into the original artwork that became 

CC3460. There is no pre-existing artwork from Photoshop 

in design CC3460.”

On October 15, 2015, Top Fashion, a women’s clothing 

manufacturer, purchased four yards of fabric bearing the 

Subject Design from Desire. Top Fashion used this fabric to 

secure a garment order from Ashley Stewart, Inc. (“Ashley 

Stewart”), a women’s clothing retailer. However, Top 

Fashion and Desire had a dispute over the fabric price. Top 

Fashion then showed the Subject Design to Manna, a fabric 

supplier. Manna gave the Subject Design to its independent 

designer, Matty Mancuso, who in turn sent the design to 

Longwell Textile (“Longwell”) in China with instructions to 

modify it. Upon receiving the modified design from 

Longwell, Mancuso replied, “After looking at this—don’t 

know if you change [sic] it enough?” A Longwell 

representative responded: “I changed 30–40% on original, 

pls kindly approve . . . .” Manna registered the design (the 
DESIRE V. MANNA TEXTILES 7

“Accused Design”) with the United States Copyright Office 

on December 1, 2015.

Between October 2015 and May 2016, Manna sold 

fabric bearing the Accused Design to ABN, Top Fashion, 

and Pride & Joys (the “Manufacturer Defendants”), all 

women’s clothing manufacturers. These manufacturers 

created garments from that fabric and sold them to women’s 

clothing retailers 618 Main, Burlington Coat Factory Direct 

Corp. (“Burlington”), and Ashley Stewart (the “Retail 

Defendants”).

Thus, as alleged, Manna infringed Desire’s copyright by 

selling fabric bearing the Accused Design to the 

Manufacturer Defendants. The Manufacturer Defendants 

then each allegedly committed a separate act of infringement 

in their sales to the individual Retail Defendants, who in turn 

allegedly committed acts of infringement in their sales to 

consumers. However, Desire does not allege that the 

Manufacturer Defendants infringed in concert, nor that the 

Retail Defendants acted in concert to infringe Desire’s 

copyright.
8 DESIRE V. MANNA TEXTILES

Below is a chart showing the three “chains” of 

infringement that Desire alleged here.

In June 2016, Desire sued Manna, ABN, Top Fashion, 

Burlington, and Ashley Stewart, and later added Pride & 

Joys and 618 Main, alleging that all had willfully infringed 

Desire’s copyright by manufacturing and/or selling fabric 

and garments bearing the Accused Design.

All parties moved for summary judgment. The district 

court partly granted Desire’s motion and denied defendants’ 

motion. The district court concluded that there were no 

triable issues of fact as to (1) Desire’s ownership of the 

Subject Design, rejecting defendants’ arguments that the 

design was not original, or (2) whether Manna, ABN, and 

Top Fashion had access to the Subject Design. The district 

court also concluded that the Subject Design was entitled to 

broad copyright protection. The court identified triable 

issues of fact as to (1) whether the Accused Design was 

substantially similar to the Subject Design; and (2) whether 

defendants willfully infringed the Subject Design. The court 

also held that if Desire prevailed, it would be potentially 

entitled to a maximum of seven awards of statutory damages 

with joint and several liability imposed as follows:
DESIRE V. MANNA TEXTILES 9

(1) Against Manna individually, for copying the Subject 

Design and distributing fabric bearing the Accused 

Design to the Manufacturer Defendants.

(2) Against Manna and Top Fashion jointly and 

severally, for Top Fashion’s sale of infringing 

garments to Ashley Stewart.

(3) Against Manna, Top Fashion, and Ashley Stewart, 

jointly and severally, for Ashley Stewart’s display 

and sale of infringing garments to consumers.

(4) Against Manna and ABN, jointly and severally, for 

ABN’s sale of infringing garments to Burlington.

(5) Against Manna, ABN, and Burlington, jointly and 

severally, for Burlington’s display and sale of 

infringing garments to consumers.

(6) Against Manna and Pride & Joys, jointly and 

severally, for Pride & Joys’s sale of infringing 

garments to 618 Main.

(7) Against Manna, Pride & Joys, and 618 Main, jointly 

and severally, for 618 Main’s display and sale of 

infringing garments to consumers.

The jury returned a verdict in favor of Desire, finding 

that Manna, ABN, and Top Fashion willfully infringed the 

Subject Design, and that Pride & Joys and 618 Main 

innocently infringed the Subject Design.1 The jury awarded 

statutory damages to Desire: $150,000 against Manna, 

$150,000 against ABN, $150,000 against Top Fashion, 

1 Burlington and Ashley Stewart settled before trial.
10 DESIRE V. MANNA TEXTILES

$20,000 against Pride & Joys, and $10,000 against 

618 Main. Although the jury’s verdict form did not specify 

joint and several liability for any of its damages awards, the 

judgment read alongside the district court’s pretrial order on 

the parties’ potential liability, establishes the parties’ joint 

and several liability for each award: $150,000 against Manna 

alone; $150,000 against ABN (jointly and severally with 

Manna); $150,000 against Top Fashion (jointly and 

severally with Manna); $20,000 against Pride & Joys (jointly 

and severally with Manna); and $10,000 against 618 Main 

(jointly and severally with Pride & Joys and Manna). The 

parties do not dispute this.

Manna, ABN, Top Fashion, Pride & Joys, and 618 Main 

(“Appellants”) timely appealed.2

II. DISCUSSION

A. Standard of Review

“We review the district court’s grant of summary 

judgment de novo.” Goodman v. Staples The Office 

Superstore, LLC, 644 F.3d 817, 822 (9th Cir. 2011). We 

review for abuse of discretion the district court’s rulings on 

2 The record reflects that 618 Main and Pride & Joys have satisfied 

the judgments entered against them. Payment of a judgment does not 

foreclose an appeal. Milicevic v. Fletcher Jones Imps., Ltd., 402 F.3d 

912, 915 (9th Cir. 2005). An exception to that rule exists where “there is 

some contemporaneous agreement not to appeal, implicit in a 

compromise of the claim after judgment.” Jones v. McDaniel, 717 F.3d 

1062, 1069 (9th Cir. 2013) (quoting Milicevic, 402 F.3d at 915). No party 

states that there was a contemporaneous agreement not to appeal when 

the parties paid the judgments against them. 618 Main and Pride & Joys 

joined the notice of appeal filed in the district court, they have not been 

dismissed from the appeal, and we consider them parties and subject to 

our jurisdiction.
DESIRE V. MANNA TEXTILES 11

motions in limine. Branch Banking & Tr. Co. v. D.M.S.I., 

LLC, 871 F.3d 751, 759 (9th Cir. 2017). We review 

questions of statutory interpretation de novo. United States 

v. Youssef, 547 F.3d 1090, 1093 (9th Cir. 2008) (per curiam).

B. The District Court Correctly Held that Desire 

Owned a Valid Copyright.

Desire must prove its ownership of a valid copyright to 

establish copyright infringement. Feist Publ’ns, Inc. v. Rural 

Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991). “To qualify 

for copyright protection, a work must be original to the 

author.” Id. at 345. “Original, as the term is used in 

copyright, means only that the work was independently 

created by the author (as opposed to copied from other 

works), and that it possesses at least some minimal degree of 

creativity.” Id.; see 1 M. Nimmer & D. Nimmer, Copyright 

(“Nimmer”) §§ 2.01[A], [B] (2020). The parties do not 

dispute that Desire’s copyright registration for the Subject 

Design “constitute[s] prima facie evidence of the validity of 

the copyright and of the facts stated in the certificate.” 

17 U.S.C. § 410(c). To rebut the presumption of validity, 

Appellants “must simply offer some evidence or proof to 

dispute or deny [Desire]’s prima facie case . . . .” United 

Fabrics Int’l, Inc. v. C&J Wear, Inc., 630 F.3d 1255, 1257

(9th Cir. 2011) (citations omitted).

Appellants’ challenge is based on Deborah Young’s 

expert report, which concluded that “[t]he flower 

motif/arrangement of Desire’s design is similar to numerous 

floral motifs found in many prior art materials in the public 

domain.” But Appellants misapprehend the appropriate 

standard. The “similarity” of one design to another has no 

bearing on whether Desire “independently created” the 

subject design. Feist, 499 U.S. at 345.
12 DESIRE V. MANNA TEXTILES

Desire presented undisputed evidence that a Cake 

designer “created [the Subject Design] using their own 

imagery” in Adobe Photoshop, and used “no pre-existing 

artwork from Photoshop.” That satisfies the test. See id.

(“Originality does not signify novelty; a work may be 

original even though it closely resembles other works so 

long as the similarity is fortuitous, not the result of 

copying.”); see also Nimmer § 2.01[A][2].

Appellants have also failed to introduce evidence that the 

Subject Design lacked the necessary “modicum of 

creativity” to be entitled to a valid copyright. Feist, 499 U.S. 

at 346; see id. at 345 (“[T]he requisite level of creativity is 

extremely low; even a slight amount will suffice. The vast 

majority of works make the grade quite easily, as they 

possess some creative spark, ‘no matter how crude, humble 

or obvious’ it might be.” (quoting Nimmer § 1.08[C][1])).

Thus, the district court correctly held that Desire owned 

a valid copyright in the Subject Design.

C. The District Court Correctly Extended Broad 

Copyright Protection to the Subject Design.

The district court held that the Subject Design was 

entitled to broad copyright protection as a matter of law 

because the flowers and the arrangement of those flowers are 

“stylized and not lifelike,” the Subject Design was an 

original creation, and “there is ‘a wide range of expression’ 

for selecting, coordinating, and arranging floral elements in 

stylized fabric designs.” We agree.

To establish copyright infringement, Desire must show 

that Appellants copied the “constituent elements of the 

[Subject Design] that are original,” Feist, 499 U.S. at 361, 

which requires a showing that (1) Appellants had access to 
DESIRE V. MANNA TEXTILES 13

the Subject Design, which is undisputed, and (2) “the two 

works are substantially similar,” L.A. Printex Indus., Inc. v. 

Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012), 

abrogated on other grounds as recognized by Unicolors, Inc. 

v. H&M Hennes & Mauritz, L.P., 959 F.3d 1194, 1198 (9th 

Cir. 2020). Before analyzing substantial similarity, we 

determine whether a copyright is entitled to “thin” or 

“broad” protection. Mattel, Inc. v. MGA Entm’t, Inc., 

616 F.3d 904, 913–14 (9th Cir. 2010). The scope of 

protection depends on “the breadth of the possible 

expression” of a work’s ideas. Id. at 913.

If there’s a wide range of expression . . . , 

then copyright protection is “broad” and a 

work will infringe if it’s “substantially 

similar” to the copyrighted work. If there’s 

only a narrow range of expression . . . , then 

copyright protection is “thin” and a work 

must be “virtually identical” to infringe.

Id. at 913–14 (citations omitted); see also Satava v. Lowry, 

323 F.3d 805, 812 (9th Cir. 2003) (concluding that a glassin-glass jellyfish sculpture was entitled to thin protection due 

to the narrow range of expression).

In L.A. Printex, we held that the stylized floral pattern at 

issue—“a repeating pattern of bouquets of flowers and threeleaf branches”—was entitled to broad copyright protection 

“[b]ecause there is ‘a wide range of expression’ for selecting, 

coordinating, and arranging floral elements in stylized fabric 

designs . . . .” 676 F.3d at 850 (quoting Mattel, 616 F.3d 

at 913). “‘[T]here are gazillions of ways’ to combine petals, 

buds, stems, leaves, and colors in floral designs on fabric, in 

contrast to the limited number of ways to, for example, ‘paint 

a red bouncy ball on black canvas’ or make a lifelike glass-
14 DESIRE V. MANNA TEXTILES

in-glass jellyfish sculpture.” Id. at 850–51 (quoting Mattel, 

616 F.3d at 913–14).

Under L.A. Printex, the Subject Design is entitled to 

broad copyright protection. Like the floral design at issue in 

L.A. Printex, the Subject Design is a stylized floral design. 

The flowers are “stylized and not lifelike,” and the Subject 

Design “depicts not flowers as they appear in nature but an 

artistic combination of floral elements that is sufficiently 

original to merit copyright protection.” Id. at 850 n.4 

(contrasting the stylized floral pattern at issue to the jellyfish 

sculptures in Satava). The Subject Design’s floral elements 

are subject to a wide range of expression. And as we have 

already held, Appellants failed to create a genuine issue of 

material fact on the Subject Design’s originality. See supra

Part II.B. Thus, Desire’s “original selection, coordination, 

and arrangement” of floral elements in the Subject Design is 

entitled to broad copyright protection as a matter of law. See 

L.A. Printex, 676 F.3d at 850.

Appellants argue that the scope of the Subject Design’s 

copyright protection was a question for the jury, but we have 

squarely and repeatedly held that the district court must 

determine the scope of a work’s copyright protection in the 

first instance. See Mattel, 616 F.3d at 915 (determining the 

scope of copyright protection for a doll “sculpt” as a legal 

matter); Apple Comput., Inc. v. Microsoft Corp., 35 F.3d 

1435, 1443 (9th Cir. 1994) (“[T]he court must define the 

scope of the plaintiff’s copyright—that is, decide whether 

the work is entitled to ‘broad’ or ‘thin’ protection.”).

Appellants also argue that elements of the Subject 

Design that were “not original” should have been “filtered 

out of the analysis” for purposes of the jury’s consideration 

of whether the Accused Design infringed on Desire’s 

copyright. But, again, Appellants failed to raise a genuine 
DESIRE V. MANNA TEXTILES 15

issue of material fact on the question of the Subject Design’s 

originality. Appellants assert that their expert would have 

testified that the Subject Design was “essentially copied 

from pre-existing works,” thus rendering the Subject Design 

“unoriginal.” Not so. Young’s proffer merely stated that the 

Subject Design is “similar to numerous floral motifs” found 

in the “public domain.” That the Subject Design may not be 

novel is immaterial to the question whether it is “original.” 

Desire’s uncontested evidence established originality, and 

the district court correctly afforded the Subject Design broad 

copyright protection.3

D. The District Court Erred in Permitting Multiple 

Awards of Statutory Damages.

The district court concluded pretrial that Desire could 

obtain a separate statutory damages award based on each 

defendant’s infringements—seven possible awards (though 

two defendants settled before trial reducing the number to 

five).4

 The district court also concluded, based on the 

summary judgment record, that “upstream infringers” could 

be jointly and severally liable for the downstream infringers’ 

infringing conduct.5 The five statutory damages awards 

3 Because we conclude that Young’s proffered testimony did not 

bear on the Subject Design’s originality, we also conclude that the 

district court did not abuse its discretion in excluding those portions of 

Young’s testimony comparing the Subject Design to other floral designs 

in the public realm.

4 The settlement, in the district court’s view, eliminated award 

numbers (3) and (5) listed above in Part I.

5 The dissent, incorrectly, believes this to be a “hypothetical finding” 

because, it argues, “we review final judgments, not opinions or pre-trial 

orders.” Dissent at p. 43 (citing Jennings v. Stephens, 574 U.S. 271, 277 

(2015)). But the opinion in Jennings says nothing about pre-trial orders, 
16 DESIRE V. MANNA TEXTILES

and we have repeatedly stated that “[a]n appeal from a final judgment 

draws in question all earlier, non-final orders and rulings which 

produced the judgment.” Litchfield v. Spielberg, 736 F.2d 1352, 1355 

(9th Cir. 1984) (emphasis added). While the dissent posits that the 

judgment is inconsistent with the order, it does not explain the supposed 

inconsistency. Further, neither party on appeal treats this order as 

hypothetical or seeks the solution proposed by the dissent. Both parties 

addressed the question in their briefs and requested that this court 

adjudicate the issue. Manna argued that the district court’s order 

“conflates the tort principle of vicarious liability with the much broader 

tort principle of joint and several liability” and asked the panel to reject 

the district court’s conclusions. Desire in turn noted that if this court 

agrees with its view (and that of the district court) that upstream 

infringers should be liable for downstream infringements, it should 

remand for the district court to enter judgment consistent with this ruling. 

We decline to resolve the case on an issue raised by neither party. See 

United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (noting 

that as a general rule parties “are responsible for advancing the facts and 

argument entitling them to relief” (citation omitted)).

The district court’s conclusion that “seven statutory damages awards 

are available with joint and several liability imposed consistent with this 

Order” is unequivocal. Once the jury found defendants liable and 

determined statutory damages, the awards were no longer “theoretical” 

and judgment was entered, consistent with the court’s order finding 

defendants jointly and severally liable. Nothing in the record indicates 

that the district court modified this order prior to entering judgment. Cf. 

City of L.A., Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 

(9th Cir. 2001) (noting that district courts may “reconsider, rescind, or 

modify an interlocutory order for cause” provided the “court has 

jurisdiction over the case” (emphasis omitted) (citation omitted)). 

Accordingly, we part ways with the dissent: the district court imposed 

joint and several liability in its order, contingent on the jury’s finding of 

damages, and this order was “draw[n] in question” on appeal by the final 

judgment, see Litchfield, 736 F.2d at 1355.
DESIRE V. MANNA TEXTILES 17

against Manna, ABN, Top Fashion, 618 Main, and Pride & 

Joys are at issue on appeal.6

Appellants contend first that the district court adopted an 

erroneous view of joint and several liability. Rather than 

focusing, as the district court did, on whether individual 

defendants contributed to one another’s tortious acts, 

Appellants argue that joint and several liability attaches 

when two or more defendants contribute to the harm the 

plaintiff suffers, even if they do so independently.7 Under 

this approach, because all defendants contributed to Desire’s 

injuries (that is, the “loss of compensation resulting from the 

infringement”), all are jointly and severally liable with one 

another according to Appellants. And because all defendants 

are (thus) jointly and severally liable, the Copyright Act 

permits only one award of statutory damages.

In the alternative, Appellants assert that, even if the 

district court correctly formulated joint and several liability, 

it was error to hold that the Copyright Act permits multiple 

awards of statutory damages when joint and several liability 

is not complete. We disagree with Appellants’ argument on 

joint and several liability, but agree with their interpretation 

of the Copyright Act.

6 Under the district court’s allocation, Manna could be liable for the 

entire $480,000, Top Fashion for $150,000, ABN for $150,000, Pride & 

Joys for $30,000, and 618 Main for $10,000 (though, of course, Desire 

could not collect more than $480,000).

7 As discussed above, Pride & Joys and 618 Main, in the same 

distribution chain, were jointly and severally liable with each other for 

$10,000, though neither was, for example, jointly and severally liable 

with Top Fashion, which was in a different distribution chain.
18 DESIRE V. MANNA TEXTILES

1. The district court correctly apportioned joint 

and several liability among the defendants.

The district court stated, “where an upstream defendant 

causes, whether directly or indirectly, a downstream 

defendant’s infringement, the upstream defendant is a joint 

tortfeasor in, and therefore jointly and severally liable for, 

the plaintiff’s harm caused by the downstream defendant’s 

conduct.” The district court also concluded that “where a 

downstream infringer’s conduct is not the legal cause of the 

upstream defendant’s infringement, the downstream 

infringer will not be responsible, jointly and severally, for 

the upstream defendant’s wrongdoing.” The district court’s 

conclusions were correct.

“If the independent tortious conduct of two or more 

persons is a legal cause of an indivisible injury,” joint and 

several liability may apply. Restatement (Third) of Torts: 

Apportionment Liab. § 17 (2000). “The requirement is only 

that the independent tortious acts ‘concur’ to cause an injury 

that is not divisible based on the causal contribution of the 

tortfeasors.” Id. § A18 cmt. b. A divisible injury is one for 

which “[d]amages can be divided by causation.” Id. § 26(b). 

To determine whether an injury is divisible, the factfinder 

must determine whether “the evidence provides a reasonable 

basis” to determine “that any legally culpable conduct of a 

party . . . was a legal cause of less than the entire damages 

for which the plaintiff seeks recovery” and “the amount of 

damages separately caused by that conduct.” Id. “When two 

or more persons have joined in or contributed to a single 

infringement of a single copyright, each is jointly and 

severally liable; [and in such] circumstances, in a single 

infringement action . . . .” Nimmer § 14.04[E][2][d][i] 

(footnote omitted); see, e.g., Adobe Sys. Inc. v. Blue Source 

Grp., Inc., 125 F. Supp. 3d 945, 973 (N.D. Cal. 2015).
DESIRE V. MANNA TEXTILES 19

Appellants argue that all defendants are jointly and 

severally liable for all infringements in the action because all 

the downstream infringers contributed to Desire’s injuries in 

the form of the compensation Desire otherwise would have 

recouped from the use of its copyrighted design. Thus, 

Appellants contend that Desire suffered one indivisible 

injury for all the infringements flowing from Manna’s source 

infringement, and that each defendant is jointly and severally 

liable for all infringements, regardless of whether an 

infringement occurred in a defendant’s independent chain of 

distribution. We disagree.

Appellants’ formulation of joint and several liability 

rests on a flawed understanding of the injury that stems from 

copyright infringement. In Appellants’ view, each separate 

act of downstream infringement contributed to a single 

indivisible injury: the loss of compensation that Desire 

would have otherwise realized from the use of its 

copyrighted design. But we have recognized that the 

“rewards” that Congress intended to secure for the owner of 

a copyright “need not be limited to monetary rewards.” 

Worldwide Church of God v. Phila. Church of God, Inc., 

227 F.3d 1110, 1119 (9th Cir. 2000). Indeed, “[t]he 

copyright law does not require a copyright owner to charge 

a fee for the use of his works . . . . It is not the role of the 

courts to tell copyright holders the best way for them to 

exploit their copyrights . . . .” Sony Corp. of Am. v. Universal 

City Studios, Inc., 464 U.S. 417, 446 n.28 (1984).

Thus, we think that a view of “harm” or “injury” cabined 

only to Desire’s loss of compensation is inconsistent with the 

Copyright Act. Rather, we think correct the district court’s 

formulation of joint and several liability, which considers 

which defendants were responsible for which acts of 

infringement.
20 DESIRE V. MANNA TEXTILES

Desire’s damages were divisible. Each upstream 

infringer was a “but for” cause of all downstream 

infringements in its chain of distribution, because absent the 

upstream infringer’s distribution, no downstream infringer 

would have received any infringing item. Since the district 

court could determine which group of defendants legally 

caused each set of infringements, it divided the 

infringements into seven sets: (1) Manna’s distribution to 

Pride & Joys, ABN, and Top Fashion (only Manna liable); 

(2) Top Fashion’s sale to Ashley Stewart (Manna and Top 

Fashion jointly and severally liable); (3) Ashley Stewart’s 

display and sale to consumers (Manna, Top Fashion, and 

Ashley Stewart jointly and severally liable); (4) ABN’s sale 

to Burlington (Manna and ABN jointly and severally liable); 

(5) Burlington’s display and sales to consumers (Manna, 

ABN, and Burlington jointly and severally liable); (6) Pride 

& Joys’s sale to 618 Main (Manna and Pride & Joys jointly 

and severally liable); and (7) 618 Main’s display and sales 

to consumers (Manna, Pride & Joys, and 618 Main jointly 

and severally liable).

Here, there was no evidence any downstream infringer 

was the “but for” cause of any upstream infringement in the 

other chains of distribution, or, in the case of the Retail 

Defendants, the “but for” cause of Manna’s sale to any 

Manufacturer Defendant.8 The district court properly found 

8 In a case like this, where one purchases infringing goods with 

knowledge of the goods’ infringing character, a court could find the 

purchaser was a legal cause of the infringing act of distribution and 

contributorily liable for it. See Ellison v. Robertson, 357 F.3d 1072, 1076 

(9th Cir. 2004) (“One who, with knowledge of the infringing activity, 

induces . . . infringing conduct of another may be liable as a contributory

copyright infringer.” (alterations, internal quotation marks, and citation 

omitted)).
DESIRE V. MANNA TEXTILES 21

on summary judgment that while some defendants could be 

jointly and severally liable with some other defendants, not 

all defendants could be jointly and severally liable with all 

other defendants.9

This conclusion does not end our inquiry. Though we 

agree that the district court correctly determined joint and 

several liability, we hold the district court erred in awarding 

Desire multiple statutory damages awards totaling $480,000.

2. The Copyright Act permits only one award of 

statutory damages here.

The Copyright Act permits a copyright owner to elect an 

award of statutory damages in lieu of actual damages and 

profits. 17 U.S.C. § 504(c)(1) (“Section 504(c)(1)”). Section 

504(c)(1) permits an owner to recover “an award of statutory 

damages for all infringements involved in the action, with 

respect to any one work, for which any one infringer is liable 

individually, or for which any two or more infringers are 

liable jointly and severally.” Id. Section 504(c)(1) limits 

statutory damages awards to $150,000 for willful 

infringement and $30,000 for innocent infringement. Id. 

§ 504(c)(1), (2). “The number of awards available under this 

provision depends not on the number of separate 

That said, it does not appear that Desire ever pursued a theory of 

contributory infringement based on the purchase of articles bearing the 

infringing design. And even if Desire had done so, it would not alter our 

conclusion that joint and several liability is incomplete, as there is no 

evidence that any purchaser contributed to acts of infringement in other 

chains of distribution.

9 For example, 618 Main was not a “but for” cause of Manna’s 

distribution to Top Fashion. Thus, 618 Main was not jointly and 

severally liable with Top Fashion.
22 DESIRE V. MANNA TEXTILES

infringements, but rather on (1) the number of individual 

‘works’ infringed and (2) the number of separate infringers.” 

Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1189–

90 (9th Cir. 2016). There is no dispute that Appellants 

infringed one work, the Subject Design. The pertinent 

question, then, is whether the Act authorized the district 

court to issue multiple statutory damages awards where one 

infringer is jointly and severally liable with all other 

infringers, but the other infringers are not completely jointly 

and severally liable with one another. The answer is no.

a. The text of Section 504(c)(1) limits 

Desire to one award of statutory 

damages.

As in all statutory interpretation, “our inquiry begins 

with the statutory text, and ends there as well if the text is 

unambiguous.” BedRoc Ltd., LLC v. United States, 541 U.S. 

176, 183 (2004). “[W]hen the statutory language is 

unambiguous, the plain meaning controls.” Afewerki v. 

Anaya Law Grp., 868 F.3d 771, 778 (9th Cir. 2017) (internal 

quotation marks and citation omitted). We conclude that the

plain meaning of Section 504(c)(1) precludes multiple 

awards of statutory damages when, as here, there is only one 

work infringed by a group of defendants that have partial 

joint and several liability amongst themselves through a 

prime tortfeasor that is jointly and severally liable with every 

other defendant.

The Act clearly provides for an award of statutory 

damages for all infringements of a single work “for which 

any two or more infringers are liable jointly and severally.” 

17 U.S.C. § 504(c)(1) (emphasis added). This is such a case. 

Manna is jointly and severally liable with ABN, Top 

Fashion, Pride & Joys, and 618 Main. See supra Part I. And 

“an award” clearly means one award. Thus, as every district 
DESIRE V. MANNA TEXTILES 23

court to consider this statute and this question has concluded 

(besides the district court in this case), “[f]or any two or 

more jointly and severally liable infringers, a plaintiff is 

entitled to one statutory damage award per work.” Arista 

Records LLC v. Lime Grp. LLC, 784 F. Supp. 2d 313, 316 

(S.D.N.Y. 2011); see also, e.g., Clever Factory, Inc. v. 

Kingsbridge Int’l, Inc., No. 3:11-1187, 2014 WL 2711986, 

at *2 (M.D. Tenn. June 16, 2014); Agence Fr. Presse v. 

Morel, 934 F. Supp. 2d 584, 590 (S.D.N.Y. 2013); 

McClatchey v. Associated Press, No. 3:05-cv-145, 2007 WL 

1630261, at *4 (W.D. Pa. June 4, 2007); Bouchat v. 

Champion Prods., Inc., 327 F. Supp. 2d 537, 553 (D. Md. 

2003), aff’d on other grounds sub nom. Bouchat v. Bon-Ton 

Dep’t Stores, Inc., 506 F.3d 315 (4th Cir. 2007).

Desire and the dissent argue, though, that all defendants 

must be jointly and severally liable for all the infringements 

for the statute to limit a plaintiff to a single statutory 

damages award. But not only is that interpretation contrary 

to the plain and unambiguous meaning of the statute, it 

would also run afoul of the canon of statutory interpretation 

that “courts should disfavor interpretations of statutes that 

render language superfluous.” Conn. Nat’l Bank v. Germain, 

503 U.S. 249, 253 (1992).

Nothing in the Act’s text requires complete joint and 

several liability to limit the plaintiff to “an award.” 

Requiring complete joint and several liability among all 

defendants “would render the word ‘any’ [in ‘for which any 

two or more infringers are liable jointly and severally’] 

superfluous, or alternatively, would rewrite the statute to 

impose a single award only where ‘all infringers are liable 

jointly and severally.’” McClatchey, 2007 WL 1630261, 
24 DESIRE V. MANNA TEXTILES

at *4 (first emphasis added).10 Section 504(c)(1)’s use of the 

word “any” means that if all infringers in the action were 

jointly and severally liable with at least one common 

infringer (here Manna) all defendants should be treated as 

one unit. “The intent of this statute . . . appears to be to 

constrain the award of statutory damages to a single award 

10 The dissent’s statutory analysis runs counter to its own 

interpretation of “any.” See dissent at p. 50–51. We agree with the dissent 

(and the Supreme Court) that “the word ‘any’ has an expansive meaning, 

that is, one or some indiscriminately of whatever kind.” Dissent at p. 50

(emphasis added) (quoting United States v. Gonzales, 520 U.S. 1, 5 

(1997)). Thus, in Gonzales, the Supreme Court noted that the phrase 

“any other term of imprisonment” encompassed all terms of 

imprisonment, not only those in federal prison. Gonzales, 520 U.S. at 5. 

Similarly, our interpretation of “any” to include a group of defendants 

that have partial joint and several liability amongst themselves through a 

prime tortfeasor that is jointly and severally liable with every other 

defendant is the correct expansive meaning. It includes the most 

expansive type of joint and several liability (partial), rather than limiting 

the definition to only complete joint and several liability. Further, the 

dissent is incorrect when it notes that “it matters which specific acts of 

infringement each defendant is jointly and severally liable for,” dissent 

at p. 51, because it reads out the word “all” that precedes “infringemts 

involved.” The phrase “all infringements” signals to the court that it does 

not matter how many or which specific infringements each defendant is

liable for in a single workthere will still be one award per work.

The error of this interpretation becomes clear when applied to 

individually liable infringers, see Arista Records, 784 F. Supp. 2d at 316 

(“Congress intended for the Copyright Act to treat jointly and severally 

liable infringers the same way that the statute treats individually liable 

infringers.”). Courts would now be similarly required to focus on which 

specific infringements each individual infringer is liable for to determine 

the number of awards. This would shift the focus away from individual 

liability for “all infringements involved in the action, with respect to any 

one work.” 17 U.S.C. § 504(c)(1). Plaintiffs could recover an award for 

every specific act of infringement where there are multiple individually 

liable defendants—instead of one statutory award for each individually 

liable defendant “with respect to any one work.” Id. (emphasis added).
DESIRE V. MANNA TEXTILES 25

per work, rather than allowing a multiplication of damages 

based on the number of infringements.” Agence Fr. Presse 

v. Morel, 934 F. Supp. 2d 547, 580 (S.D.N.Y. 2013), 

superseded in part by Agence Fr. Presse, 934 F. Supp. 2d 

584.

Though our inquiry as to the meaning of the statute both 

begins and ends with the text, we note that the statutory 

damages award is an alternative to an actual damages award, 

and the election is always at the option of the copyright 

owner. Other statutory schemes might also be logical. But it 

makes sense that Congress, rather than creating a statute that 

awarded a windfall, instead created a statute that allowed 

actual damages plus costs and attorneys’ fees or (if actual 

damages are too small to afford a meaningful deterrent) a

statutory damages award of up to $150,000 plus costs and 

attorneys’ fees. When the defendants have infringed more 

than one work, a plaintiff may seek additional awards of 

statutory damages. Likewise, additional groups of jointly 

and severally liable defendants may be subject to separate 

awards of statutory damages, but only if no defendant in a 

group (as to which a separate award is sought) is jointly and 

severally liable with a member of another group.11

11 Here, for example, if Manna were not involved at all and Pride & 

Joys, ABN, and Top Fashion had independently infringed, there could

be three awards, even though Pride & Joys, ABN, and Top Fashion were 

each jointly and severally liable with others in their separate distribution 

chains. See Agence Fr. Presse, 934 F. Supp. 2d at 579 (“[I]f a group 

(‘two or more’) of infringers have engaged in any number of 

infringements for which all are jointly and severally liable, the statute 

again mandates a single statutory award of damages per work 

infringed.”). This view treats groups of jointly and severally liable 

defendants that are not jointly and severally liable with other groups 

identically to individually liable infringers. See Arista Records, 784 F. 
26 DESIRE V. MANNA TEXTILES

Desire posits that our decision in Columbia Pictures 

Television v. Krypton Broadcasting of Birmingham, Inc.

(Columbia I), 106 F.3d 284 (9th Cir. 1997), rev’d on other 

grounds sub nom. Feltner v. Columbia Pictures Television, 

Inc., 523 U.S. 340 (1998), dictates that we hold that Section 

504(c)(1) permits separate statutory damages awards in 

situations like this. We disagree.

In Columbia I, we affirmed an $8.8 million judgment

comprised of 440 statutory damages awards and based on 

440 separately infringed worksagainst a single individual. 

See Columbia Pictures Television, Inc. v. Krypton Broad. of 

Birmingham, Inc. (Columbia II), 259 F.3d 1186, 1190 (9th 

Cir. 2001).12 The district court initially determined that 

defendant Feltner, the owner of a company that owned three 

television stations, was vicariously liable for these television 

stations’ displaying Columbia’s copyrighted television 

episodes.13 Columbia I, 106 F.3d at 288. Before the district 

Supp. 2d at 316 (“[T]he Court is confident that Congress intended for the 

Copyright Act to treat jointly and severally liable infringers the same 

way that the statute treats individually liable infringers.” (emphasis 

omitted)).

12 The Supreme Court reversed our decision in Columbia I because 

it found the Seventh Amendment guaranteed Feltner a jury trial on the 

total amount of statutory damages. Columbia II, 259 F.3d at 1190–91. 

On remand the jury awarded Columbia $31.68 million, and Feltner again 

appealed to this court. Id. at 1191.

13 Plaintiff Columbia separately licensed the three stations to 

broadcast episodes of television shows as to which it owned the 

copyrights. Columbia I, 106 F.3d at 288. When the stations became 

delinquent in paying royalties, Columbia terminated (or attempted to 

terminate) the licenses, but the stations continued broadcasting the 

television shows and Columbia sued. Id. “During the course of the 

litigation, Columbia dismissed all claims against all defendants with the 
DESIRE V. MANNA TEXTILES 27

court (and on appeal), Feltner argued unsuccessfully that the 

number of awards should be reduced because the stations 

were all owned under a common owner. Id. at 294 n.7. 

Specifically, he argued that when calculating damages, 

multiple television stations displaying identical television 

episodes should count as a single work per episode. The 

district court disagreed, concluding that separate displays of 

identical television episodes14 by different stations qualified 

as separate works. Columbia II, 259 F.3d at 1190 

(explaining that “the district court determined that Feltner 

infringed 440 separate ‘works’”). We “generally affirmed 

the district court’s rulings” in Columbia I, and when the case 

returned to us on remand from the Supreme Court, we 

remanded back to the district court “on the sole question of 

the amount of money to award Columbia.” Id. at 1190–91. 

After a jury trial on the amount of damages, the jury awarded 

Columbia $31.68 million, and we again affirmed.15 Id. at 

1189. Ultimately, Feltner, the owner and only defendant on 

trial, was responsible for 440 separate awards based on 440 

works. We emphasized this in Columbia II, noting that “the 

Copyright Act . . . permits an award of statutory damages 

exception of the copyright claims against Feltner.” Columbia II, 259 F.3d

at 1190. The district court then found Feltner “vicariously and 

contributorily liable for the copyright infringement committed by the 

defendant stations” for the separate copyright infringements. Id. The 

district court held Feltner was liable for 664 separate infringements of 

Columbia’s copyrighted works.

14 There were about 149 unique episodes of one television show that 

were shown by two stations. It does not appear from the record that the 

infringing episodes shown by the third television station overlapped with 

the other two stations.

15 The jury awarded approximately “$72,000 for each of the 

440 works infringed, which [was] within the statutory damages range for 

willful infringement.” Columbia II, 259 F.3d at 1191.
28 DESIRE V. MANNA TEXTILES

‘for all infringements involved in the action, with respect to 

any one work.’” Id. at 1190 (quoting 17 U.S.C. § 504(a)(1)). 

There, Feltner once again asserted that because two of the 

stations were joint tortfeasors, an episode should count as 

only “one work” when each station separately aired the same 

episode. Id. at 1194. We rejected this view because “his 

connection with each of the stations . . . simply ma[de] 

Feltner a joint tortfeasor with each stationit [did] not make 

each station a joint tortfeasor with respect to the other.” Id.

(citing Columbia I, 106 F.3d at 294). Thus, what we rejected 

in Columbia II was an argument that separate acts of 

infringement of the same television episode by different 

televisions stations result in only one infringed work simply 

because there was a common owner of the stations.

But no one here has argued that the defendants’ separate 

infringing acts of the pattern design resulted in multiple

infringed works. As the dissent notes, “it was undisputed that 

there was only one ‘work’ at issue.” Dissent, at p. 41. Nor is 

Manna an owner of the downstream infringers whose 

liability stemmed only from its corporate relationship with 

those infringers. Rather, unlike Feltner, Manna is a prime 

tortfeasor in all three distribution chains. The underlying 

question herehow does the Copyright Act treat multiple 

acts of separate infringements of one workwas never 

directly considered in Columbia I or Columbia II because the 

district court ruled there were 440 statutory awards from 
DESIRE V. MANNA TEXTILES 29

664 separate infringements of 440 separate works.16 These 

cases thus shed little light on the issue here.17

We also disagree with Desire that Friedman, and in 

particular its discussion of a hypothetical posed in Nimmer 

(the “Nimmer Hypothetical”), the leading treatise on 

copyright law, supports multiple statutory damages awards 

here. In Friedman, we expanded on Columbia I, but stopped 

16 The district court’s ruling of 440 infringed works affirmed in

Columbia I and II also impliedly supports our read of the statute. While 

Feltner was initially found liable for 664 separate acts of infringement, 

the district court then held after a bench trial that Columbia was only 

entitled to 440 statutory awards, or one award per work infringed. See 

Columbia I, 106 F.3d at 296 (finding “the district court’s award of 

$20,000 per work infringed [was] well within the statutory limits” 

(emphasis added)). On remand, the jury also only considered Feltner’s 

liability from 440 works and awarded a total amount that was “equal to 

a per work infringed award that [was] well within the statutory range for 

willful infringement.” Columbia II, 259 F.3d at 1195. Here, however, 

Manna is liable for $480,000, well outside the $150,000 “statutory range 

for willful infringement” per work infringed. Id. This further cuts against 

the dissent’s view that multiple awards are available.

17 Desire and the dissent, see dissent at p. 45, both argue that we are 

constrained by footnote 7 in Columbia I, in which we wrote that 

“[b]ecause the stations were not jointly and severally liable with each 

other, Feltner’s liability vis-a-vis the stations merely renders him jointly 

and severally liable for each station’s infringements—it does not convert 

the stations’ separate infringements into one.” 106 F.3d at 294 n.7. But 

that footnote “neither directly addressed the statutory text nor engaged 

in detailed analysis of the issue.” Agence Fr. Presse, 934 F. Supp. 2d 

at 582. Cf. Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003) 

(per curiam) (“[W]here a panel confronts an issue germane to the 

eventual resolution of the case, and resolves it after reasoned 

consideration in a published opinion, that ruling becomes the law of the 

circuit . . . .” (emphasis added) (citation omitted)). And the district court 

here did not find that multiple infringements of the Subject Design 

translated into separate infringements of multiple works.
30 DESIRE V. MANNA TEXTILES

a step short of addressing the issue presented in this appeal. 

We determined that one statutory damages award was 

appropriate when the defendant had sold infringing products 

to 104 retailers the plaintiff had not joined as defendants. We 

reasoned that the “holding in Columbia [I] was explicitly 

premised on the fact that each of the downstream infringers 

for whom the plaintiff received a separate damages award 

was a defendant in the case.” 833 F.3d at 1191. Thus,

Section 504(c)(1)’s provision of separate 

statutory damage awards for the infringement 

of each work “for which any two or more 

infringers are liable jointly and severally” 

applies only to parties who have been 

determined jointly and severally liable in the 

course of the liability determinations in the 

case for the infringements adjudicated in the 

action. A plaintiff seeking separate damages 

awards on the basis of downstream 

infringement must join the alleged 

downstream infringers in the action and 

prove their liability for infringement.

Id. at 1192. In Friedman, we avoided answering the question 

of how Section 504(c)(1) applies when the plaintiff joins 

both the common primary source infringer and the 

downstream infringers as defendants, when the downstream 

infringers are not jointly and severally liable with each 

other.18 Here, we conclude that in those circumstances, only 

one award of statutory damages is permissible.

18 Desire incorrectly interprets Friedman to stand for the proposition 

“that if a downstream infringer is added to an action and its infringement 

is proven, then a separate award of statutory damages is appropriate.”
DESIRE V. MANNA TEXTILES 31

Nor do we find persuasive Desire’s reliance on the 

Nimmer Hypothetical, in which D distributed the plaintiff’s 

copyrighted motion picture to A, B, and C, who in turn 

publicly performed that motion picture. Nimmer 

§ 14.04[E][2][d]. As stated in Nimmer, “[a]lthough A, B, and 

C are not jointly or severally liable each with the other, 

D will be jointly and severally liable with each of the 

others.” Id. § 14.04[E][2][d][i]. In those circumstances, 

according to Nimmer, “three sets of statutory damages may 

be awarded, as to each of which D will be jointly liable for 

at least the minimum of $750.” Id.

Although we acknowledge that the Nimmer 

Hypothetical supports Desire’s position, we decline to adopt 

its conclusions. Nimmer offers no basis, except for a citation 

to Columbia II, for the proposition that multiple statutory 

damages awards are appropriate. But we have already 

explained that Columbia II does not determine the outcome 

of this case. And Nimmer never discusses how multiple 

statutory damages awards in the circumstances here adhere 

to the text of the statute. As several district courts have noted, 

“subsequent decisions have rejected outright . . . the Nimmer 

hypothetical, finding [it] inapplicable to situations involving 

large numbers of infringements.” Arista Records, 784 F. 

Supp. 2d at 318; see also Arista Records, 784 F. Supp. 2d 

at 320 (discussing the Nimmer Hypothetical and concluding 

that “allowing Plaintiffs to recover multiple awards per work 

based on the number of direct infringers is untenable”); 

Bouchat, 327 F. Supp. 2d at 553 (“While it may well be 

possible to distinguish the Nimmer example from the 

situation present[,] . . . [i]t suffices to state that the Court 

Friedman merely held that joinder of an infringer was a prerequisite to 

seeking a separate statutory damages award—not that it was sufficient 

on its own.
32 DESIRE V. MANNA TEXTILES

would not follow [Nimmer’s] conclusion to reward Bouchat 

with more than 350 separate statutory damage awards.”). We 

agree with those district court decisions.

b. Multiple awards of statutory damages 

here would produce an absurd result 

not intended by Congress.

The result we reach here is the only one consistent with 

the plain text of the statute, and we need go no further. That 

being said, the interpretation of Section 504(c)(1) that Desire 

and the dissent urge, and the district court adopted, produces 

an absurd result. See Rowland v. Cal. Men’s Colony, 

506 U.S. 194, 200 (1993) (invoking “the common mandate 

of statutory construction to avoid absurd results”). 

Specifically, requiring complete joint and several liability 

among all defendants in order to limit the plaintiff to one 

award for one work would lead to disparate treatment of 

infringers depending on the relationship between 

downstream infringers. Cf. Friedman, 833 F.3d at 1191 

(rejecting the mass-marketing exception in part because 

“such an exception would mean reading the statute in two 

different ways depending on how many down-the-line 

violations there were”).

If Manna, ABN, Top Fashion, and Pride & Joys had 

acted in concert to sell infringing materials to downstream 

retailers (and thus were each jointly and severally liable), 

each would be shielded from multiple statutory damages 

awards by operation of the statute’s plain language.19 Yet 

because Manna acted separately with each downstream 

19 See Bon-Ton Dep’t Stores, 506 F.3d at 329 (“Because NFLP and 

the licensee were at fault together for the licensee’s violation, they are 

liable jointly and severally for any damages the violation caused.”).
DESIRE V. MANNA TEXTILES 33

infringer, Manna and each of the next-level downstream 

infringers would be subject to multiple statutory damages 

awards, under the dissent’s interpretation of the statute. It is 

illogical that an infringer should face greater liability for 

participating in an infringement activity in a less culpable 

manner.20

The district court’s interpretation would also lead to 

potentially astronomical statutory damages awards contrary 

to the purpose of Section 504(c)(1).21 Friedman recognized 

that Section 504(c)(1) should not be read to “lead[] to 

extremely unlikely results, with direct infringers becoming 

liable for astronomical sums in cases with large numbers of 

downstream infringers unrelated to each other.” 833 F.3d 

at 1192; see also id. (noting that “[t]his risk has become 

particularly acute in the internet era, where rapid peer-topeer file sharing has enabled mass piracy of books, films, 

music, and other copyrighted materials”). Adopting the 

district court’s interpretation “could lead to awards of

statutory damages that are massively disproportionate when 

compared to the actual harm caused by the infringing 

defendants.” Agence Fr. Presse, 934 F. Supp. 2d at 580; see

20 Under the rule proposed by Desire, if all defendants here 

conspired, Manna would be liable only once, but because downstream 

infringers did not act together, Manna is to face multiple awards of 

statutory damages. Logic would suggest instead that the broader the 

conspiracy, the more extensive the co-conspirator liability, not the 

reverse. But again, regardless of the comparative logic of the two 

approaches, the statute Congress wrote dictates the result here.

21 The dissent misses the point here, see dissent at p. 48–49. This is 

not a “mass-marketing” concern rejected by Friedman, dissent at p. 48–

49, nor have we substituted our “own policy preferences for those of 

Congress,” dissent at p. 55–56. We are motivated by the very same

concern that drove our court’s holding in Friedman. See 833 F.3d 

at 1192.
34 DESIRE V. MANNA TEXTILES

also Arista Records, 784 F. Supp. 2d at 317 (“The absurdity 

of this result is one of the factors that has motivated other 

courts to reject [the district court’s] damages theory.”);

McClatchey, 2007 WL 1630261 at *4 (finding persuasive 

the Bouchat court’s conclusion that the result would be 

“absurd” (quoting Bouchat, 327 F. Supp. 2d at 553)).

As awarded by the district court, Manna is jointly and 

severally liable for awards totaling $480,000. Manna 

asserted in its trial briefing that its profits from infringing 

sales did not exceed $5,000 (though the district court noted 

that the exact amounts of Manna’s profits were not in 

evidence). Assuming for argument’s sake that Manna’s 

representation is accurate, the district court’s order makes 

Manna liable for nearly one hundred times its profits. And 

while we have here “only” three chains of infringement 

resulting in five or seven awards of statutory damages, the 

problem of disproportionate awards would increase 

exponentially in a case like Friedman, where a plaintiff 

could recover thousands (or more) in statutory damages 

awards where infringing content is widely distributed over 

the internet. See Friedman, 833 F.3d at 1192 (“As the district 

court rightly recognized, the broad reading of Columbia [I] 

Friedman urges leads to extremely unlikely results, with 

direct infringers becoming liable for astronomical sums in 

cases with large numbers of downstream infringers unrelated 

to each other.”).

c. Permitting multiple awards of 

statutory damages here would 

frustrate the purposes of the Copyright 

Act.

Finally, we believe the district court’s approach to be 

contrary to the purposes of the Act. “Statutory damages are 

available in order to effectuate two purposes underlying the 
DESIRE V. MANNA TEXTILES 35

remedial provisions of the Copyright Act: to provide 

adequate compensation to the copyright holder and to deter 

infringement.” Frank Music Corp. v. Metro-GoldwynMayer Inc., 886 F.2d 1545, 1554 (9th Cir. 1989). “Statutory 

damages are intended as a substitute for profits or actual 

damage,” Frank Music Corp. v. Metro-Goldwyn-Mayer, 

Inc., 772 F.2d 505, 520 (9th Cir. 1985), and should not 

provide copyright owners a windfall. Congress specifically 

limited the amount of statutory damages available per award 

and limited a plaintiff to a single award no matter how many 

infringements an individual defendant or group of jointly 

and severally liable defendants committed.

We are mindful of the fact that under the approach we 

adopt today, a plaintiff might achieve the result Desire seeks 

by suing separate infringers in separate actions, arguably 

frustrating the purposes of the Act as well. We still think our 

approach is preferable to the alternative, for several reasons.

First, we think that even if this is a risk, it is outweighed

by the vastly disproportionate damages awards that would 

flow from a contrary interpretation of Section 504(c)(1). 

Second, the risk is not unique to our interpretation. Even 

under the approach advocated by Desire and adopted by the 

district court, only one statutory damages award is available 

for each group of completely jointly and severally liable 

defendants. A plaintiff could still sue each defendant 

separately to increase its potential recovery, regardless that 

the separately sued defendants participated in the same 

course of infringing conduct. See Friedman, 833 F.3d 

at 1191 (“Any downstream infringements cannot be 

‘involved in the action’ unless the alleged infringers 

responsible for those infringements were joined as 

defendants in the case, and the particular alleged 

infringements involving them adjudicated.”). Thus, the 
36 DESIRE V. MANNA TEXTILES

presence of infringers not joined in the case will not defeat a 

plaintiff’s ability to increase his recovery by engaging in 

separate lawsuits.

Third, if an enterprising plaintiff tried to sue jointly and 

severally liable defendants in different actions to evade the 

single-statutory-damages-award limit, those defendants 

could argue to the jury that their liability for statutory 

damages should be materially lessened. See Bryant v. Media 

Right Prods., Inc., 603 F.3d 135, 144 (2d Cir. 2010) 

(observing that a statutory damages award may account for 

the infringer’s “expenses saved, and profits earned,” “the 

revenue lost by the copyright holder,” and “the deterrent 

effect on the infringer and third parties,” among other 

factors); Dream Games of Ariz., Inc. v. PC Onsite, 561 F.3d 

983, 992 (9th Cir. 2009) (“If statutory damages are elected, 

the jury has wide discretion in determining the amount of 

statutory damages to be awarded, constrained only by the 

specified maxima and minima. The jury is guided by what is 

just in the particular case, considering the nature of the 

copyright, the circumstances of the infringement and the like 

. . . .” (internal quotation marks, citations, and alterations 

omitted)).

And fourth, a court could consolidate such multiple 

actions (if brought in the same district) in a single action 

under Federal Rule of Civil Procedure 42(a).22 And if the 

claims are brought in different districts, a defendant could 

seek transfer under 28 U.S.C. § 1404(a), which permits a 

22 The dissent, citing no case law or treatise, asserts that this would 

be a violation of the Rules Enabling Act and wonders how the district 

courts will “work around [our] mess.” Dissent at p. 55. But the out-ofcircuit district courts that have considered the issue (remember no other 

circuit has adopted the dissent’s statutory interpretation of Section 504) 

have managed these past thirteen years.
DESIRE V. MANNA TEXTILES 37

district court to transfer venue in a civil action “[f]or the 

convenience of parties and witnesses, in the interest of 

justice.” A plaintiff attempting to avoid consolidation or 

transfer by suing individual defendants seriatim would likely 

run up against the three-year statute of limitations for 

copyright infringement claims. See 17 U.S.C. § 507(b).23

But even if we are wrong in our appraisal of the multiplelawsuit risk, as our approach is the only one consistent with 

the text of Section 504(c)(1), it is not our job to reweigh the 

merits of the several possible approaches. “Whatever merits 

these . . . policy arguments may have, it is not the province 

of this [c]ourt to rewrite the statute to accommodate them.” 

Artuz v. Bennett, 531 U.S. 4, 10 (2000).

Desire also contends that multiple statutory damages 

awards may be necessary to realize the goals of the 

Copyright Act by fully compensating a plaintiff and 

deterring all infringers in an action. But this argument is 

unavailing for three reasons: First, Section 504(c)(1) already 

provides for the factfinder to consider the number of direct 

infringers and the number of infringements of the 

copyrighted work when determining the amount of statutory 

damages. See Dream Games of Ariz., 561 F.3d at 992. 

Second, it is the copyright holder’s choice to pursue statutory 

damages rather than actual damages and profits under 

17 U.S.C. § 504(b). If statutory damages are inadequate to 

fully compensate the injured party, it may elect actual 

23 According to the dissent “[i]t will instead become commonplace 

for plaintiffs to bring a separate lawsuit against each defendant” to 

maximize the number of statutory damages awards. Dissent at p. 53. But 

if this were the case it would have already happened in every circuit in 

which district courts have considered the issue we face, especially 

because no other circuit (that we are aware of) requires plaintiffs to join 

downstream defendants in the action.
38 DESIRE V. MANNA TEXTILES

damages instead. And third, and most important, if Desire’s 

position is superior from a public policy perspective, it is for 

Congress alone to amend the statute. See Artuz, 531 U.S. at 

10.

III. CONCLUSION

We affirm the district court’s grant of summary 

judgment as to the ownership and scope of copyright 

protection, as well as the district court’s exclusion of 

Young’s testimony. We reverse the district court’s grant of 

summary judgment as to the number of statutory damages 

awards available, vacate the judgment awarding Desire 

multiple awards of statutory damages, and remand for 

further proceedings consistent with this opinion.

Each party shall bear its own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART, 

VACATED, AND REMANDED.

WARDLAW, Circuit Judge, concurring in part and 

dissenting in part:

I respectfully dissent from the majority’s conclusion that 

Desire is entitled to only one award of statutory damages 

against the five defendants whom the jury concluded 

separately infringed varying exclusive rights in copyright.1 

The majority ranges far afield to reach a conclusion that is 

not only contrary to controlling Ninth Circuit precedent on 

1 I concur with the majority’s conclusions in Parts II.B–C of the 

majority opinion that Desire owned a valid copyright in the Subject 

Design and that the design was entitled to broad copyright protection.
DESIRE V. MANNA TEXTILES 39

statutory damages in copyright but also creates perverse 

incentives for copyright litigation. After today’s decision, a 

copyright plaintiff can seek only one award of statutory 

damages when it joins in a single lawsuit members of 

independently infringing distribution chains that trace back 

to a common infringing source. But if the plaintiff brings 

separate lawsuits against each infringer, or if it simply cuts 

the common source defendant at the top of the chain out of 

the case, a separate statutory damages award is available 

against each defendant.

This rule makes little sense. And worse still, it was 

entirely unnecessary for the majority to reach the question 

because none of the five separate, independently liable, 

copyright infringers in this case was actually found jointly 

and severally liable with another. Thus, the majority creates 

law with enormous implications for copyright owners 

litigating to protect their rights, in a case where the critical 

issue—whether only one award of statutory damages is 

allowable where one infringer is found jointly and severally 

liable for the downstream infringers’ conduct, but the 

downstream infringers are not jointly and severally liable 

with each other—is not even before us.

I. No Defendant Was Held Jointly and Severally Liable 

for the Copyright Infringement of Another 

Defendant.

The judgment entered on September 29, 2017, following 

the jury verdict, does not hold any party jointly and severally 

liable for any other party’s statutory damages. The district 

court expressly rejected a “[proposed] amended judgment” 

that included language finding joint and several liability. 

Nor did the special verdict form address joint and several 

liability or secondary infringement; nor were those questions 

the subject of a single jury instruction.
40 DESIRE V. MANNA TEXTILES

The issue of multiple awards of statutory damages arises 

from the district court’s September 22, 2017, pre-trial “Order 

re Plaintiff’s Entitlement to Separate Statutory Damages 

Awards” (the Statutory Damages Order). In that order, the 

district court applied well-established principles of 

contributory liability and our decisions in Friedman v. Live 

Nation Merch., Inc., 833 F.3d 1180 (9th Cir. 2016), and 

Columbia Pictures Television v. Krypton Broad. of 

Birmingham, Inc., 106 F.3d 284 (9th Cir. 1997), rev’d on

other grounds sub nom. Feltner v. Columbia Pictures 

Television, Inc., 523 U.S. 340 (1998), to conclude that 

because this is a case “where separate infringements for 

which two or more defendants are not jointly liable are 

joined in the same action, separate awards of statutory 

damages would be appropriate.” See Columbia Pictures, 

106 F.3d at 294 (quoting H.R. Rep. No. 94-1476, at 162 

(1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5778). But 

while the order reflects how the district court expected to 

apply joint and several liability after trial, the court never 

actually held that Manna, or any of the other defendants, is 

jointly and severally liable for payment of the statutory 

damages awarded against another defendant.

Under 17 U.S.C. § 504(c)(1), a copyright owner may 

elect to recover

an award of statutory damages for all 

infringements involved in the action, with 

respect to any one work, for which any one 

infringer is liable individually, or for which 

any two or more infringers are liable jointly 

and severally, in a sum of not less than $750 

or more than $30,000 as the court considers 

just.
DESIRE V. MANNA TEXTILES 41

In the event of willful infringement, “the court in its 

discretion may increase the award of statutory damages to a 

sum of not more than $150,000.” Id. § 504(c)(2). As we 

have previously explained, the number of statutory damages 

awards available under § 504(c)(1) “depends not on the 

number of separate infringements, but rather on (1) the 

number of individual ‘works’ infringed and (2) the number 

of separate infringers.” Friedman, 833 F.3d at 1189–90.

Here, it was undisputed that there was only one “work” 

at issue: Desire’s copyrighted CC3460 floral print textile 

design. It was also undisputed at the time of the Statutory 

Damages Order that there were seven defendants who were 

each alleged to have directly and independently infringed the 

copyrighted work.2 At the top of the distribution chain sat 

Manna, a fabric supplier that intentionally reproduced the 

copyrighted design and distributed the infringing product to 

three women’s clothing manufacturers—ABN, Pride & 

Joys, and Top Fashion—who occupied the middle rung of 

the chain. The manufacturers, in turn, created garments out 

of the infringing fabric and sold them to the retailer 

defendants—Ashley Stewart, Burlington, and 618 Main—

who then distributed and publicly displayed the infringing 

garments.

2 An infringer is “[a]nyone who violates any of the exclusive rights 

of the copyright owner” granted by the Copyright Act. 17 U.S.C. 

§ 501(a); see A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 

(9th Cir. 2001) (noting that direct copyright infringement occurs when 

“the alleged infringers violate at least one exclusive right granted to 

copyright holders under 17 U.S.C. § 106”). Those exclusive rights 

include the reproduction, preparation of derivative works, distribution, 

public performance, and public display of the copyrighted material. 

17 U.S.C. § 106.
42 DESIRE V. MANNA TEXTILES

By the time of trial, Ashley Stewart and Burlington had 

settled and were no longer part of the case. For the 

remaining five defendants, the jury adjudicated liability and 

concluded that Manna, ABN, and Top Fashion were willful 

infringers, and that Pride & Joys and 618 Main had 

innocently infringed. It awarded the maximum $150,000 in 

statutory damages against each of the willful infringers, 

$20,000 against Pride & Joys, and $10,000 against 

618 Main.

The jury was not asked to find any party jointly and 

severally liable. That is because the district court, in the pretrial Statutory Damages Order, had decided that it would 

determine joint and several liability itself, depending on the 

jury’s verdict. The pretrial order expressly noted that it was 

delineating the statutory damages that were “theoretically 

available” depending on what was proved at trial, and that 

after the jury returned its verdict, “the Court w[ould] then 

apply joint and several liability as discussed [in the Statutory 

Damages Order] to allocate damages in accordance with 

section 504(c)(1).”

But the district court never did that allocation. Indeed, 

Desire, the party that would benefit from a finding of joint 

and several liability, did not seek joint and several liability 

against the defendants. The majority treats the Statutory 

Damages Order as though it applied to the jury verdict 

without any further action by the district court. Majority Op. 

at 10. But it is clear from the face of the Statutory Damages 

Order that it was not self-executing. As the order explains, 

it set forth the framework that “the Court w[ould] then

apply” after the jury’s determination of liability. (emphasis 

added). In other words, the order expressly contemplated 

that the district court would take some affirmative postverdict action to apply joint and several liability principles 
DESIRE V. MANNA TEXTILES 43

to the defendants in this case, if warranted by the trial 

evidence. It is undisputed that the district court never did so.

Moreover, we review final judgments, not opinions or 

pre-trial orders. See Jennings v. Stephens, 574 U.S. 271, 277 

(2015) (“This Court, like all federal appellate courts, does 

not review lower courts’ opinions, but their judgments.”). 

The judgment in this case reads as follows:

IT IS ORDERED AND ADJUDGED that 

Plaintiff Desire, LLC recover of Defendants:

Manna Textiles, Inc. $150,000

A.B.N., Inc. $150,000

Top Fashion of N.Y., Inc. $150,000

Pride & Joys, Inc. $20,000

618 Main Clothing Corp. $10,000

On its face, the judgment limits Desire to collecting only 

the specified amounts from each defendant. Nothing in the 

judgment holds any defendant jointly and severally liable for 

another’s damages.

The majority contends that the pre-trial statutory 

damages order was “draw[n] in” to the judgment. Majority 

Op. at 15 n.5. Of course, the majority is correct that pre-trial 

orders generally merge into a final judgment. See Am. 

Ironworkers & Erectors, Inc. v. N. Am. Constr. Corp., 

248 F.3d 892, 897 (9th Cir. 2001). But when a judgment is 

inconsistent with a pre-trial order, the judgment must 
44 DESIRE V. MANNA TEXTILES

control. It is the judgment, not the pre-trial order, that 

ultimately “define[s] the rights and liabilities of the parties.” 

Jennings, 574 U.S. at 277 (“[A] rule that . . . makes the 

opinion part of the judgment, is peculiar . . . .”). An order 

issued before trial therefore cannot modify a judgment 

entered after trial.

For all its mighty strivings, the majority cannot make the 

judgment say something it does not. Because we cannot 

make a joint and several liability finding ourselves on 

appeal, the proper course would be to remand for the district 

court to either correct its judgment—if the omission of joint 

and several liability was a mere oversight, see Fed. R. Civ. 

P. 60(a)—or for the district court to adjudicate joint and 

several liability in the first instance and enter judgment 

accordingly. Instead, the majority incorrectly interprets 

§ 504(c)(1), and then applies that misinterpretation to its 

hypothetical finding of joint and several liability.

II. The Majority’s Interpretation of § 504(c)(1) Runs 

Directly Contrary to Controlling Ninth Circuit 

Precedent.

The majority’s analysis should have started and stopped 

with our precedential decisions in Columbia Pictures and 

Friedman.

In Columbia Pictures, we held that “where separate 

infringements for which two or more defendants are not 

jointly liable are joined in the same action, separate awards 

of statutory damages would be appropriate.” 106 F.3d at 294 

(quoting H.R. Rep. No. 94-1476, at 162 (1976), reprinted in

1976 U.S.C.C.A.N. 5659, 5778). There, after a bench trial 

on statutory damages, the district court found that the 

infringement of Columbia Pictures Television’s copyright in 

certain television series by three television stations joined in 
DESIRE V. MANNA TEXTILES 45

the action, along with their owner, as defendants, were 

“separate acts of infringement” subject to separate awards of 

statutory damages. Id. We affirmed, because the three 

stations broadcasting the infringing television episodes were 

not “joint tortfeasors.” Id.

We also upheld the district court’s conclusion that the 

station owner defendant was vicariously and contributorily 

liable for the three television stations’ separate displays of 

the copyrighted television shows and was therefore jointly 

and severally liable with each station. Id. at 288, 294 & n.7; 

see also Friedman, 833 F.3d at 1190 (explaining the holding 

of Columbia Pictures). We rejected the defendant owner’s 

argument that only one and not multiple sets of statutory 

damages was appropriate, reasoning that “[b]ecause the 

stations were not jointly and severally liable with each other, 

[the owner’s] liability vis-a-vis the stations merely renders 

him jointly and severally liable for each station’s 

infringements—it does not convert the stations’ separate 

infringements into one.”3

 Columbia Pictures, 106 F.3d 

at 294 n.7.

3 The majority all but concedes that this part of the Columbia 

Pictures opinion is in direct conflict with its conclusion that only one 

statutory damages award is available in this case. It attempts to brush 

past the passage as dicta, quoting an out-of-circuit district court’s 

characterization of it as “neither directly address[ing] the statutory text 

nor engag[ing] in detailed analysis of the issue.” Majority Op. at 29 n.17

(quoting Agence France Presse v. Morel, 934 F. Supp. 2d 547, 582 

(S.D.N.Y. 2013)). But Footnote 7 is clearly not dicta—it provided the 

entire reasoning for rejecting one of the defendant’s arguments. See 

United States v. Rivera-Corona, 618 F.3d 976, 986 (9th Cir. 2010) 

(Fisher, J., concurring) (“A proposition necessary to the holding cannot 

be dicta.”). While the out-of-circuit district court in Agence France 

Presse may have been free to decline to follow Footnote 7, the panel 
46 DESIRE V. MANNA TEXTILES

As in Columbia Pictures, if the district court here had 

found Manna jointly and severally liable for all the 

downstream separate infringements, that would not convert 

the subsequent separate infringements into one because the 

downstream defendants are not joint tortfeasors. It does not 

matter that Manna is also liable for its own distinct, separate 

violation of Desire’s copyright because it copied the fabric 

design and distributed those copies.

Five years ago, in Friedman, we reaffirmed the holding 

in Columbia Pictures, reiterating that the three statutory 

damages awards in that case were appropriate because the 

three downstream television stations there “were each jointly 

and severally liable with the [station owner] defendant but 

not with each other.” 833 F.3d at 1190. In Friedman, 

defendant Live Nation had distributed goods bearing 

copyrighted images to 104 different retailers, who then also 

infringed the copyrighted works. Id. at 1183–84. The 

district court rejected the plaintiff’s effort to seek 

104 separate statutory damages awards, reasoning that doing 

so would “lead to an absurd result.” Id. at 1191. While it 

recognized that Columbia Pictures was “binding precedent” 

holding that separate awards were appropriate in this 

circumstance, the district court nonetheless concluded that 

Columbia Pictures should not be applied to a “massmarketing campaign” like the one there. Id.

We squarely rejected the district court’s rationale for 

disallowing separate statutory damages awards. We held 

that Columbia Pictures “is the law of this circuit, and 

majority here is bound by it. See Miller v. Gammie, 335 F.3d 889, 900 

(9th Cir. 2003) (en banc).
DESIRE V. MANNA TEXTILES 47

nothing in the opinion—or in the text of the statute itself—

admits of a ‘mass-marketing’ exception.”4 Id.

We also noted with approval that the facts of Columbia 

Pictures were “analogous” to the hypothetical discussed by 

Professor Nimmer in his leading treatise on copyright law—

a hypothetical the majority finds unpersuasive. Id. at 1190–

91. As Professor Nimmer explains, “[i]f each defendant is 

liable for only one of the several infringements that are the 

subject of suit, then each defendant will be liable for a 

separate set of statutory damages (each with its own 

minimum).” 4 M. Nimmer & D. Nimmer, Nimmer on 

Copyright § 14.04[E][2][d][i] (2020) (hereinafter Nimmer).

The Nimmer Hypothetical is predicated on a single 

complaint that alleges infringement of the public 

performance right in a motion picture against three 

independent operators of movie theaters—A, B, and C—

who unlawfully publicly performed the plaintiff’s movie. Id. 

Nimmer states that “if A, B, and C have no relationship with 

one another, there is no joint or several liability as between 

them, so that each is liable for at least a minimum $750 

statutory damage award.” Id. Adding to this hypothetical, 

Nimmer addresses a slightly different scenario where “D, 

without authority, distributed plaintiff’s motion picture to A, 

B, and C,” and concludes that “[a]lthough A, B, and C are 

not jointly and severally liable each with the other, D will be 

jointly and severally liable with each of the others.” Id. 

Thus, as here, three sets of statutory damages are awardable: 

4 We ultimately held in Friedman that a plaintiff can seek separate 

statutory damages awards only if it joins the alleged downstream 

infringers in the action and proves their liability. Friedman, 833 F.3d 

at 1192. That holding is not at issue here because Desire joined each of 

the downstream infringers as defendants in this case.
48 DESIRE V. MANNA TEXTILES

one against A+D, jointly and severally; one against B+D, 

jointly and severally; and one against C+D, jointly and 

severally.5 Id.

To summarize, our court in Columbia Pictures and 

Friedman endorsed the Nimmer Hypothetical, rejected the 

idea of a “mass-marketing exception,” and adopted a simple 

rule: separate statutory damages awards are appropriate 

when separate downstream infringers are not jointly and 

severally liable with each other, even though an upstream 

defendant might be jointly and severally liable with each of 

them. Friedman, 833 F.3d at 1090–91; Columbia Pictures, 

106 F.3d at 294. Under this rule, the outcome of this case is 

straightforward. Because the downstream infringers—

ABN, Pride & Joys, Top Fashion, and 618 Main—separately 

infringed and are not jointly and severally liable with each 

other, Desire is entitled to separate statutory damages 

awards.

Instead of following Columbia Pictures and Friedman, 

the majority swerves off in the opposite direction. While 

acknowledging that “the Nimmer Hypothetical supports 

Desire’s position,” the majority simply “decline[s] to adopt 

its conclusions.” Majority Op. at 31. But the Nimmer 

Hypothetical cannot be so blithely cast aside. We previously 

described it as “analogous” to Columbia Pictures, a case the 

majority is not free to ignore. Friedman, 833 F.3d at 1190.

Instead, the majority writes that allowing separate 

awards would “lead to potentially astronomical statutory 

5 Unlike here, in the Nimmer Hypothetical, D is not separately 

alleged to have committed an independent act of copyright infringement, 

so D’s participation in the movie distribution profits does “not create a 

fourth set of statutory damages.” Nimmer § 14.04[E][2][d][i].
DESIRE V. MANNA TEXTILES 49

damages awards contrary to the purpose of Section 

504(c)(1).” Majority Op. at 33. If this refrain sounds 

familiar, that is because it is the same “mass-marketing” 

concern we rejected in Friedman. Friedman, 833 F.3d 

at 1191. The majority grounds its concerns about 

“astronomical” damages on the exact same out-of-circuit 

authority that we faulted the district court for relying on in 

Friedman. Compare Majority Op. at 34–34 (“agree[ing]” 

with Arista Records LLC v. Lime Grp. LLC, 784 F. Supp. 2d 

313, 318 (S.D.N.Y. 2011), and Bouchat v. Champion Prods., 

Inc., 327 F. Supp. 2d 537, 553 (D. Md. 2003)), with 

Friedman, 833 F.3d at 1191 (chastising the district court for 

relying on Arista Records and Bouchat because the 

reasoning of those cases is contrary to Columbia Pictures).

The majority cannot escape the fact that the relationship 

between the parties here is precisely the same as it was in 

Columbia Pictures. The downstream defendants here each 

directly infringed the copyright by violating various of 

Desire’s exclusive rights in its copyrighted work, as the 

stations did in Columbia Pictures. Manna, in the majority’s 

view, is jointly and severally liable for those infringements,6

just as the Columbia Pictures defendant was jointly and 

severally liable for the stations’ infringements. Id. And the 

downstream defendants here, like the stations in Columbia 

Pictures, are not jointly and severally liable with each other. 

On these facts, multiple statutory damages awards are 

available. Friedman, 833 F.3d at 1190; Columbia Pictures, 

106 F.3d at 294 & n.7.

The only thing differentiating this case from Columbia 

Pictures is that Manna also committed its own intentional 

6 It bears repeating that there has never actually been a finding of 

joint and several liability in this case.
50 DESIRE V. MANNA TEXTILES

direct infringement, for which it alone is solely liable. But 

Manna’s additional separate infringement provides no 

justification for reducing the number of potential statutory 

damages awards.

III. The Plain Language of § 504(c)(1) Allows 

Multiple Awards of Statutory Damages When 

Separate Infringements Are Found.

Even if it were not bound by our controlling precedent in 

Columbia Pictures and Friedman, the majority’s holding is 

contrary to the text of § 504(c)(1). We read the language of 

the statute “in [its] context and with a view to [its] place in 

the overall statutory scheme.” FDA v. Brown & Williamson 

Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. 

Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989)); see 

Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 

1051, 1060 (9th Cir. 2003) (en banc).

Section 504(c)(1) provides “an award of statutory 

damages for all infringements” of a single work “for which 

any one infringer is liable individually, or for which any two 

or more infringers are liable jointly and severally.” At issue 

here is the meaning of “for which any two or more infringers 

are liable jointly and severally.” (emphasis added).

“Any,” is an adjective used to denote choice from

multiple people or things. See Any, Webster’s New Int’l 

Dictionary (3d ed. 2002) (defining “any” as “one 

indifferently out of more than two; one or more: not none—

used as a function word to indicate a positive but 

undetermined number or amount”). Courts have interpreted 

“any” in a manner consistent with this dictionary definition. 

See United States v. Gonzales, 520 U.S. 1, 5 (1997) (“Read 

naturally, the word ‘any’ has an expansive meaning, that is, 

one or some indiscriminately of whatever kind.” (internal 
DESIRE V. MANNA TEXTILES 51

quotation marks omitted)); see also Ali v. Fed. Bureau of 

Prisons, 552 U.S. 214, 219–20 (2008).

In § 504(c)(1), the word “any” modifies the phrase “two 

or more infringers are liable jointly and severally.” Read 

most naturally, “any two or more infringers are liable jointly 

and severally” means an undetermined number of the 

infringers who have been held jointly and severally liable. 

Thus, “any” signals that a court must identify the jointly and 

severally liable infringers of the work amongst all of the 

defendants in the action.

Next, the “any” phrase is preceded by “for which,” a 

prepositional phrase that modifies “all infringements 

involved in the action, with respect to any one work.” The 

statute therefore requires the court to identify the infringers 

that are jointly and severally liable with respect to the 

“infringements involved in the action.” In other words, it 

matters which specific acts of infringement each defendant is 

jointly and severally liable for, not just that a defendant is 

jointly and severally liable for some infringement in the case. 

Thus, the court must separate the defendants into groups 

based on the separate infringers and works infringed, with 

each group containing all of the defendants who are jointly 

and severally liable for a given set of infringements 

committed.

After these groups have been determined, the statute 

provides “an award” of statutory damages against each 

individually liable infringer or against each distinct group of 

jointly and severally liable infringers. Put another way, the 

statute provides an award for each separate infringer, 

whether that is an individually liable infringer or a group of 

defendants who are jointly and severally liable for a given 

set of infringements. Here, that would mean that Desire 

could recover five statutory damages awards: one for each 
52 DESIRE V. MANNA TEXTILES

group of infringers that is potentially jointly and severally 

liable for the separate direct infringements committed by the 

five defendants remaining in the case.7

This result is consistent with the effect of joint and 

several liability, a concept that identifies which defendants 

are responsible for paying the full amount of plaintiff’s 

damages, not the total amount of damages to which the 

plaintiff is entitled. See Restatement (Third) of Torts: 

Apportionment Liab. § 10 (“When . . . some persons are 

jointly and severally liable to an injured person, the injured 

person may sue for and recover the full amount of 

recoverable damages from any jointly and severally liable 

person.”); id. § 10 cmt. b (“[T]he risk that one or more of the 

parties liable to the plaintiff is insolvent is placed on the 

other jointly and severally liable defendant(s), rather than on 

the plaintiff.”). 

It is also consistent with the structure of the statute, 

which indisputably permits a separate statutory damages 

award for each separate infringer. See Friedman, 833 F.3d 

at 1190. Thus, even the majority agrees that Desire could 

have recovered five statutory damages awards had it simply 

brought five separate lawsuits against the five remaining 

defendants. Majority Op. at 35–37.

7 The majority’s holding rests in large part on a counterfactual 

argument: to permit a plaintiff to recover a separate statutory damages 

award against each distinct group of jointly and severally liable 

defendants would render superfluous the word “any” in § 504(c)(1). 

Majority Op. at 23. But interpreting § 504(c)(1) to permit multiple 

statutory damages awards in this case does not render the word “any” 

superfluous. As explained, the word “any” makes clear that courts must 

determine which defendants are jointly and severally liable for each 

separate act of infringement.
DESIRE V. MANNA TEXTILES 53

Rather than adopting this straightforward construction, 

the majority interprets § 504(c)(1) to create a trap for the 

unwary. By joining the five remaining defendants in a single 

case, the majority holds, Desire unwittingly reduced the 

number of statutory damages awards it could recover from 

five to one. Specifically, the majority reads § 504(c)(1) to 

provide that whenever one defendant is jointly and severally 

liable with its downstream defendants for all downstream 

infringements, irrespective of whether those downstream 

defendants are jointly and severally liable with each other, 

the plaintiff can recover only one statutory damages award. 

Majority Op. at 22–25. Here, that means that because 

Manna is jointly and severally liable with each of the other 

defendants (in the majority’s view), none of which is jointly 

and severally liable with any other party, Desire can obtain 

only one statutory damages award against all defendants, 

jointly and severally.

The majority’s holding will have broad implications for 

copyright litigation in the Ninth Circuit. After today, no 

plaintiff will make the same “mistake” as Desire. It will 

instead become commonplace for plaintiffs to bring a 

separate lawsuit against each defendant, maximizing the 

number of statutory damages awards available while 

peppering the courts with individual cases that would be 

more efficiently tried together. Or perhaps plaintiffs will 

simply avoid suing the defendant at the top of the 

distribution chain—often the most culpable party—so they 

can join claims against several downstream infringers in a

single action and receive separate awards. This is certainly 

not how copyright litigation—or really, litigation in 

general—is supposed to work. See United Mine Workers of 

Am. v. Gibbs, 383 U.S. 715, 724 (1966) (“Under the 

[Federal] Rules [of Civil Procedure], the impulse is toward 

entertaining the broadest possible scope of action consistent 
54 DESIRE V. MANNA TEXTILES

with fairness to the parties; joinder of claims, parties and 

remedies is strongly encouraged.”).

Recognizing this absurdity, the majority argues that the 

risk of separate suits is “outweighed by the vastly 

disproportionate damages that would flow from a contrary 

interpretation of Section 504(c)(1).” Majority Op. at 35–37. 

But again, we have already rejected the idea that there is a 

“mass-marketing exception” to the rule of separate statutory 

damages awards. Friedman, 833 F.3d at 1191. The majority 

is not free to resurrect a horrible that we have already laid to 

rest, particularly as a justification for introducing a 

nonsensical rule into the law of our circuit.8

The majority also points to several supposed practical 

limitations that it speculates will make it difficult for 

plaintiffs to bring separate suits. Majority Op. at 35–37. It 

offers no guarantee, however, and its reasoning is suspect. 

8 The majority cites various district court decisions that declined to 

interpret § 504(c)(1) to permit multiple statutory damages awards in 

circumstances similar to those presented here because of the potential for 

astronomical damage awards. Majority Op. at 33–34. However, these 

courts were not bound by our ruling in Friedman that the number of 

downstream infringers does not affect our interpretation of the statute. 

833 F.3d at 1191. They were also not bound by Friedman’s requirement 

that an alleged infringer be joined and proven liable for infringement in 

an action to support a separate statutory damages award. Id. at 1191–92; 

see Agence France Presse, 934 F. Supp. 2d at 550 (the plaintiff sued the 

distributor of the infringing photographs and none of the distributees); 

McClatchey v. Associated Press, No. 305-CV-145, 2007 WL 1630261, 

at *2 (W.D. Pa. June 4, 2007) (same); Arista Records, 784 F. Supp. 2d 

at 315 (the plaintiff sued the operators of the system used to infringe and 

none of the individuals who used the software to infringe). Thus, in those 

jurisdictions, unlike ours, a plaintiff could easily multiply the number of 

statutory damages awards available by alleging downstream 

infringements without the obstacle of joining and proving liability 

against the alleged downstream infringers.
DESIRE V. MANNA TEXTILES 55

For example, the majority posits that under Federal Rule of 

Civil Procedure 42(a), a district court could consolidate 

separate actions into a single suit, which would have the 

effect of limiting the plaintiff to one statutory damages 

award. But using Rule 42(a) to reduce the number of 

statutory damages awards available would seem to run afoul 

of the Rules Enabling Act’s command that the Federal Rules 

“shall not abridge, enlarge or modify any substantive right.” 

28 U.S.C. § 2072(b). In any event, it would be foolish to 

think that copyright plaintiffs will not at least try to bring 

separate suits, leaving our circuit’s already overburdened 

district court judges to figure out whether there is a way to 

work around the majority’s mess.

Finally, the majority expresses concern that permitting a 

plaintiff to recover multiple statutory damages awards in 

these circumstances would make a defendant like Manna 

liable for many times its actual profits. Majority Op. at 34. 

But “[e]ven for uninjurious and unprofitable invasions of 

copyright the court may, if it deems it just, impose a liability 

within statutory limits to sanction and vindicate the statutory 

policy.” F. W. Woolworth Co. v. Contemporary Arts, Inc., 

344 U.S. 228, 233 (1952); see also New Form, Inc. v. Tekila 

Films, Inc., 357 F. App’x 10, 12 (9th Cir. 2009) (rejecting 

the “incorrect premise that statutory damages must be 

tethered to actual damages”). Because a plaintiff need not 

prove any actual damages to obtain a statutory damages 

award, and may recover statutory damages even for 

unprofitable infringement, it is well settled that the 

defendant’s actual profits do not control a plaintiff’s ability 

to recover statutory damages under § 504(c)(1).9

 The 

9 To the extent the majority is concerned that “an infringer [w]ould 

face greater liability for participating in an infringement activity in a less

culpable manner,” Majority Op. at 33, the Copyright Act already 
56 DESIRE V. MANNA TEXTILES

majority has substituted its own policy preferences for those 

of Congress.

* * *

The district court did not issue a judgment or any other 

order concluding that any defendant was jointly and 

severally liable for the infringing acts of any other, so it’s 

unclear what the majority thinks it’s reversing on its novel 

theory that where one infringer is jointly and severally liable 

with every other defendant, but the remaining defendants are 

not with each other, only one award of statutory damages is 

available under § 504(c)(1). Moreover, the majority’s 

opinion conflicts with our court’s binding precedent 

rejecting the very theory it adopts and is itself an atextual 

reading of the statute. I therefore respectfully dissent on the 

question of statutory damages.

accounts for differing levels of culpability by distinguishing willful from 

innocent infringers and limiting the amount of statutory damagesthat can 

be imposed against innocent infringers, see 17 U.S.C. § 504(c)(1), (c)(2).