FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GLEN E. FRIEDMAN,

Plaintiff-Appellant,

v.

LIVE NATION MERCHANDISE, INC.;

ANTHILL TRADING, LLC; ART.COM,

INC.,

Defendants-Appellees.

No. 14-55302

D.C. No.

2:11-cv-02047-

MWF-VBK

OPINION

Appeal from the United States District Court

for the Central District of California

Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted February 11, 2016

Pasadena, California

Filed August 18, 2016

Before: Marsha S. Berzon, and John B. Owens, Circuit

Judges, and Algenon L. Marbley,

*

 District Judge.

Opinion by Judge Berzon

 

*

 The Honorable Algenon L. Marbley, United States District Judge for

the Southern District of Ohio, sitting by designation.
2 FRIEDMAN V. LIVE NATION MERCHANDISE

SUMMARY**

Copyright

In a case arising out of a copyright dispute over Live

Nation’s unauthorized use, on t-shirts and a calendar, of

photographs Glen Friedman took of the hip hop group RunDMC, the panel (a) reversed the district court’s summary

judgment in favor of Live Nation Merchandise, Inc., on

claims that Live Nation willfully infringed Friedman’s

copyrights and knowingly removed copyright management

information from the images it used, and (b) affirmed the

district court’s ruling on statutory damages.

Live Nation stipulated that it infringed Friedman’s

copyrights. The panel held that the evidence in the record

gave rise to a triable issue of fact as to whether Live Nation’s

infringement was willful, which would make it liable for

additional damages under 17 U.S.C. § 504(c)(2), and that the

district court therefore erred in granting summary judgment

to Live Nation on willfulness.

The panel held that the district court also erred in granting

summary judgment on Friedman’s claim under section

1202(b) of the Digital Millennium Copyright Act regarding

removal of copyright management information. The panel

explained that Friedman could prevail upon a showing that

Live Nation distributed his works with knowledge that

copyright management information had been removed, even

if Live Nation did not remove it. The panel concluded that

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

been prepared by court staff for the convenience of the reader.
FRIEDMAN V. LIVE NATION MERCHANDISE 3

evidence in the record creates a triable issue of fact as to

whether Live Nation distributed Friedman’s photographs with

the requisite knowledge.

Affirming the district court’s ruling on statutory damages,

the panel held that Copyright Act 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, and that 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. The

panel concluded that because Friedman did not join any of his

alleged downstream infringers as defendants in this case, the

district court correctly held that he was limited to one award

per work infringed by Live Nation.

COUNSEL

Lorin E. Brennan (argued), Erica Allen Gonzales, and

Douglas A. Linde, The Linde Law Firm, Los Angeles,

California, for Plaintiff-Appellant.

Matthew R. Gershman (argued), Peter Yu, Jr., and Jeff E.

Scott, Greenberg Traurig LLP, Los Angeles, California, for

Defendants-Appellees.
4 FRIEDMAN V. LIVE NATION MERCHANDISE

OPINION

BERZON, Circuit Judge:

This case arises out of a copyright dispute over the use of

photographs Appellant Glen Friedman took of the hip hop

group Run-DMC. Appellee Live Nation Merchandise (“Live

Nation”) stipulated in the district court that it infringed

Friedman’s copyrights when it used his photos without his

authorization on t-shirts and a calendar. Our questions are

whether there is sufficient evidence in the record to permit a

jury to conclude that Live Nation committed willful copyright

infringement, making it liable for additional damages under

17 U.S.C. § 504(c)(2); whether a jury could conclude that

Live Nation knowingly removed copyright management

information (“CMI”) from the photographs in violation of

17 U.S.C. § 1202(b); and whether Friedman can recover

statutory damages awards measured by the number of

retailers who purchased infringing merchandise from Live

Nation, even though Friedman did not join those retailers as

defendants in his suit.

FACTUAL AND PROCEDURAL HISTORY

GlenFriedman is awell-known photographer whose work

focuses on figures from several American subcultures,

including skateboarders, punk rock musicians, and hip hop

artists. His photography has been in gallery exhibitions and

on record covers and has been published widely.

During the 1980s, Friedman took a series of photographs

of the hip hop group Run-DMC. Several of Friedman’s

photographs of the group appeared in a book collecting his

work. In 2005, Friedman granted a license to Sony Music to
FRIEDMAN V. LIVE NATION MERCHANDISE 5

reproduce some of his Run-DMC photographs, accompanied

by information indicating that Friedman owned the

copyrights, on a website. Fans could download the images to

use as computer “wallpapers.” Sony’s license permitted it to

alter the images in some respects — for example, by adding

a green tint, a Run-DMC logo, or a sparkle effect — and was

the only license in which Friedman authorized such

alterations to his photographs.

Live Nation1is a music merchandising company involved

in the design, manufacture, and sale of apparel and other

products featuring images and logos of various popular music

artists. In developing products, Live Nation typically enters

into written merchandising agreements with music artists in

which the artists retain final approval authority on the design,

development, distribution and sale of merchandise bearing the

artists’ marks and likeness. In practice, Live Nation submits

“Product Approval Forms” to artists asking them to sign off

on the development of products displaying specific images. 

Those forms supplied by Live Nation include no reference to

copyrights or other usage restrictions. Live Nation maintains

that artists are “not supposed to” provide approval if they do

not have the rights to the proposed photographs, but points to

no instruction or agreement so stating.

Live Nation also produced “Style Guides” — essentially,

collections of available images of particular artists — to

inform suppliers about images they could contract to use on

merchandise. Like individual products, the Style Guides

1

In addition to Live Nation, three other parties, Art.com, Inc., NMR

Distribution (America) Inc., and Michael Howard, who acted as

“distributors, retailers, licensees, and vendors” are named as defendants

as to Friedman’s copyright claims.
6 FRIEDMAN V. LIVE NATION MERCHANDISE

were first submitted to the artists, who were supposed to “preclear” the images of them included in the Guides. Live

Nation’s Run-DMC Style Guide (“Run-DMC Guide”)

included a number of Friedman’s images. Live Nation sought

and obtained approval from Run-DMC for a 2008 Wall

Calendar that included four of Friedman’s images, and later,

for three t-shirt designs, that included Friedman images

previously featured in the Run-DMC Guide.

After he became aware of Live Nation’s use of his

photographs, Friedman filed a complaint asserting claims for

relief for (1) copyright infringement, under 17 U.S.C. § 101

et seq., and (2) removal of copyright management

information (“CMI”), under 17 U.S.C. § 1202. During

discovery, Live Nation propounded a set of contention

interrogatories and requests for admission. The

interrogatories asked Friedman to detail the evidence

supporting his claims, while the requests for admission asked

him to concede that he lacked evidence to support a number

of his assertions. The district court had set April 23 as the

discovery cut-off date. Friedman’s responses were due on

April 19.

Friedman did not respond in time. Instead, on April 20,

Friedman filed objections asserting that each request was

“untimely” because it “requires a response beyond the

discovery cut-off.” Friedman claimed that this was so even

though his responses were due before the discovery cut-off

date as — according to him — the discovery cut-off “is the

date by which all discovery, including all hearings on and any

related motions, is to be completed.” Reasoning that “a

hearing on any discovery motion could not be completed

before” April 23, and because “discovery not completed

before the discovery cut-off date is not enforceable,”
FRIEDMAN V. LIVE NATION MERCHANDISE 7

Friedman maintained that he “was not required to provide any

response to Defendants’ discovery requests.”

After the close of discovery, Friedman moved for

summary judgment on the copyright infringement issue. In

response, Live Nation stipulated to liability for infringement,

and the district court entered partial summary judgment in

Friedman’s favor. Live Nation then moved for partial

summary judgment on Friedman’s CMI claim, and, to the

extent Friedman claimed Live Nation’s infringement was

“committed willfully” under 17 U.S.C. § 504(c)(2), on the

copyright infringement claim. Relying largely on Friedman’s

discovery default, Live Nation argued that Friedman had

produced no evidence whatsoever indicating that Live Nation

had willfully infringed his copyrights or had knowingly

removed CMI from any of the images. In his opposition to

Live Nation’s motion, Friedman requested that the court

permit him to withdraw any deemed admissions under

Federal Rule of Civil Procedure 36(b).

Without referring to deemed admissions or explicitly

ruling on Friedman’s Rule 36(b) request, the district court

granted Live Nation’s motion for partial summary judgment. 

On the CMI claim, the court found that “Friedman has

offered no evidence suggesting that Live Nation Merchandise

actually removed CMI from any of his Run-DMC

photographs, much less that it did so knowingly or

intentionally.” As to Friedman’s claim of willful

infringement, the court concluded that “the burden of proof

here rests on Friedman, and it is not clear that he has offered

any evidence that would create an issue of fact for a jury.”

Friedman next filed a revised statement of damages

claiming, “[i]n light of the Court’s Order Granting
8 FRIEDMAN V. LIVE NATION MERCHANDISE

Defendant’s Motion for Summary Judgment, the maximum

statutory damage award” of $3,120,000. Friedman later

explained that this figure was based on records indicating that

Live Nation had distributed one of the t-shirts to 27 retailers,

the other t-shirt to 44 retailers, and the calendar to 33 retailers

for a total of 104 separate statutory damage awards of

$30,000 each. See 17 U.S.C. § 504(c)(1).

The district court rejected this calculation, ruling that

Friedman was “entitled to only one statutory damages award

per infringed work.” Even if Friedman’s calculation of 104

“downstream infringers” were correct, the court held, this

case “involves photographs in a mass-marketing campaign.” 

Although a prior Ninth Circuit case, Columbia Pictures

Television v. Krypton Broadcasting 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), was “arguably consistent with [Friedman’s]

position if read broadly enough,” the court stated that “there

is nothing in [Columbia Pictures] that suggests its reasoning

should be applied to a mass-marketing campaign such as that

at issue in this case.”

This appeal followed.

DISCUSSION

On appeal, Friedman challenges the district court’s grant

of summary judgment to Live Nation on his willful

infringement and CMI violation claims. He also challenges

the district court’s order limiting his recovery to one statutory

damages award per infringed work.
FRIEDMAN V. LIVE NATION MERCHANDISE 9

I.

“Summary judgment is appropriate only if, taking the

evidence and all reasonable inferences drawn therefrom in the

light most favorable to the non-moving party, there are no

genuine issues of material fact and the moving party is

entitled to judgment as a matter of law.” Torres v. City of

Madera, 648 F.3d 1119, 1123 (9th Cir. 2011) (citing Corales

v. Bennett, 567 F.3d 554, 562 (9th Cir. 2009)). “[T]here is no

issue for trial unless there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party. 

If the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted.” McIndoe v.

Huntington Ingalls Inc., 817 F.3d 1170, 1173 (9th Cir. 2016)

(quoting R.W. Beck & Assocs. v. City & Borough of Sitka,

27 F.3d 1475, 1480 n.4 (9th Cir. 1994)). In determining

whether there is sufficient evidence to support a grant of

summary judgment, we “review[] the record as a whole.” 

Vander v. U.S. Dep’t of Justice, 268 F.3d 661, 663 (9th Cir.

2001).

Before proceeding to the merits of the grant of summary

judgment, we consider, and reject, a threshold question —

Live Nation’s contention that it is entitled to summary

judgment on the basis of Friedman’s discovery default.2

2 Friedman does not dispute that his objections to the interrogatories and

requests for admission were untimely. Friedman does continue to press

his argument, raised initially in those objections, that Live Nation’s

discovery requests were themselves untimely because they required a

response on April 19, 2012, just four days before the discovery cut-off

date of April 23. Friedman cites no authority for the proposition that a

discovery request with a deadline prior to the discovery cut-off could be

nonetheless untimely. In any case, Friedman waived this objection by

failing timely to raise it. See Fed. R. Civ. P. 33(b)(2); 36(a)(3).
10 FRIEDMAN V. LIVE NATION MERCHANDISE

Friedman’s failure to specify evidence in response to an

interrogatory does not mean that the evidence does not exist

in the record. In both his motion for summary judgment and

his opposition to Live Nation’s motion for partial summary

judgment, Friedman pointed to specific evidence in the record

upon which he relied.

Second, as to any deemed admission due to his failure

timely to respond to the request for admissions, Friedman

made a motion for relief under Federal Rule of Civil

Procedure 36(b), which provides that a court “may permit

withdrawal or amendment [of any deemed admission] if it

would promote the presentation of the merits of the action

and if the court is not persuaded that it would prejudice the

requesting party in maintaining or defending the action on the

merits.” Live Nation’s contention to the contrary

notwithstanding, Conlon v. United States, 474 F.3d 616, 625

(9th Cir. 2007) does not require that a request for relief under

Rule 36(b) be brought in a separate motion. Rather, Conlon

stresses the discretionary nature of relief under Rule 36(b). 

Nor does Rule 36(b) mandate that relief from a deemed

admission may be granted only upon a showing of good

cause. As Conlon explained, the two factors listed in the rule

are mandatory, but a district court “may consider other

factors, including whether the moving party can show good

cause for the delay.” Conlon, 474 F.3d at 625 (emphasis

added).

The district court never explicitly ruled on Friedman’s

Rule 36(b) motion, but it necessarily granted it. The court

never stated that Friedman had been deemed to make any

admissions, nor did it rely on any of the requested

admissions. Instead, the court considered the summary

judgment issue on the merits, discussing specific evidence in
FRIEDMAN V. LIVE NATION MERCHANDISE 11

the record and stating, with respect to the request for

admissions dispute, only that Friedman had attempted to

“sidestep[]” discovery. Given this sequence, the district court

necessarily granted, albeit implicitly, Friedman’s request to

withdraw the deemed admissions. It had authority to do so,

to “promote the presentation of the merits of the action” and

because the timing of the request was so late in the discovery

period that Live Nation could not have been prejudiced in its

discovery conduct by the inability to rely on deemed

admissions.

A. Willful Infringement

Under the Copyright Act, the amount of damages a

plaintiff may recover for infringement depends on whether

the infringement was “committed willfully.” 17 U.S.C.

§ 504(c)(2). The copyright owner has the burden of proving

willfulness. Id. “[A] finding of ‘willfulness’ in this context

can be based on either ‘intentional’ behavior, or merely

‘reckless’ behavior.” In re Barboza, 545 F.3d 702, 707 (9th

Cir. 2008) (citations omitted). “To prove ‘willfulness’ under

the Copyright Act, the plaintiff must show (1) that the

defendant was actually aware of the infringing activity, or

(2) that the defendant’s actions were the result of ‘reckless

disregard’ for, or ‘willful blindness’ to, the copyright holder’s

rights.” Louis Vuitton Malletier, S.A. v. Akanoc Sols., Inc.,

658 F.3d 936, 944 (9th Cir. 2011) (quoting Island Software &

Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 263

(2d Cir. 2005)).

A determination of willfulness requires an assessment of

a defendant’s state of mind. “Questions involving a person’s

state of mind . . . are generally factual issues inappropriate for

resolution by summary judgment.” F.T.C. v. Network Servs.
12 FRIEDMAN V. LIVE NATION MERCHANDISE

Depot, Inc., 617 F.3d 1127, 1139 (9th Cir. 2010) (quoting

Braxton-Secret v. A.H. Robins Co., 769 F.2d 528, 531 (9th

Cir. 1985)). Indeed, as the district court noted, Live Nation

was not able to cite any “cases in which a court has granted

summary judgment in favor of a defendant on the issue of

willfulness.”

The district court nonetheless granted summary judgment

to Live Nation on the willfulness issue, concluding that

Friedman had not “offered any evidence that would create an

issue of fact for a jury” regarding Live Nation’s awareness of

or reckless disregard concerningFriedman’s copyright rights. 

Not so.

On the current record, a jury could reasonably conclude

that Live Nation’s approval procedures amounted to

recklessness or willful blindness with respect to Friedman’s

intellectual property rights. Live Nation’s Product Approval

Forms saynothing whatsoever about establishing or reporting

on who holds the rights to the images whose use is proposed. 

The forms only include fields indicating the manufacturer of

the proposed product, the artist represented, and the suggested

price, along with space for unspecified “comments” by Live

Nation and the artist. From the face of the documents, one

could conclude that they are directed at design decisions, not

the rights to the photographs. Nor do the specific forms

signed by Run-DMC indicate in any way that the group was

clearing the legal right to use the photographs, on their own

behalf or anyone else’s.

In a declaration in support of Live Nation’s summary

judgment motion, one of its employees explained that when

artists did not own the rights to photographs, “they were not

supposed to, and should not, provide their written approval
FRIEDMAN V. LIVE NATION MERCHANDISE 13

. . . to develop merchandise using those photographs.” But

the employee did not say how or when Run-DMC was

apprised of this duty. She asserted only that as an industry

practice “it is generally the responsibility of the music artists’

personal managers to uncover the relevant facts and ascertain

the scope of the music artists’ rights.” Given an approval

process that never explicitly asks about copyrights at all, a

jury could reasonably conclude that Live Nation’s reliance on

the artists who were the subjects of the photographs at issue

to clear photographic rights, rather than on the photographers

who took them — based only on a purported industry practice

never reflected in any document — amounted to recklessness

or willful disregard, and thus willfulness.

That inference is particularly strong in this case. Live

Nation submitted evidence showing that it knew it needed to

take special care with respect to Friedman’s images. In

response to an unrelated request to use certain photographs of

Run-DMC, a Live Nation employee sent an email stressing

that “we do not want to use ANY Glenn Freidman [sic]

Photos for RUN DMC[.] [H]e owns all the rights to his

photos and is really not interested in using them for

[m]erchandise and he is really expensive to even get

clearance for.” This email was sent on March 26, 2009, after

the infringing use of Friedman’s photographs at issue in this

case, but before Friedman brought that infringing use to Live

Nation’s attention on October 21, 2010. Live Nation argues

that this email demonstrates that it took active steps to respect

Friedman’s rights and avoid knowingly using any of his

photos without permission. But a jury could as plausibly

understand it to demonstrate that Live Nation knew there was

a risk that photos of Run-DMC would be Friedman’s photos,

but nonetheless went forward with developing the
14 FRIEDMAN V. LIVE NATION MERCHANDISE

merchandise without taking steps to ascertain whether it

featured Friedman’s work.

We therefore conclude that, drawing all inferences in

Friedman’s favor, the evidence in the record gave rise to a

triable issue of fact as to Live Nation’s willfulness, and we

reverse the district court’s grant of summary judgment.

B. The CMI Violations

Section 1202(b) of the Digital Millennium Copyright Act

prohibits, inter alia, the distribution of works “knowing that

the copyright management information has been removed or

altered without authority of the copyright owner or the law,”

and with knowledge that such distribution “will induce,

enable, facilitate, or conceal” copyright infringement.3

17 U.S.C. § 1202(b). In granting summary judgment on the

CMI claim, the district court again relied on what it described

as “Friedman’s complete failure to adduce competent

evidence in discovery or in opposition to Defendants’

Motion” and concluded that “he has made no factual showing

that Live Nation Merchandise either removed the CMI in

question (the alleged ‘act’) or did so knowingly (the requisite

state of mind).”

We note at the outset that the district court focused on the

wrong question. The statute does prohibit the intentional

removal of CMI. See 17 U.S.C. § 1202(b)(1). But Friedman

could also prevail upon a showing that Live Nation

3 As defined by the statute, “copyright management information” refers

to various types of “information conveyed in connection with copies . . .

of a work,” including the name of the work, the name of the author, and

the name of the copyright holder, among others. 17 U.S.C. § 1202(c).
FRIEDMAN V. LIVE NATION MERCHANDISE 15

distributed his works with the knowledge that CMI had been

removed, even if Live Nation did not remove it. See id.

§ 1202(b)(3). The question, therefore, is whether evidence in

the record creates a triable issue of fact as to whether Live

Nation distributed Friedman’s photographs with the requisite

knowledge. We conclude that in the circumstances of this

case, it does.4

As we have previously explained, “[a] moving party

without the ultimate burden of persuasion at trial” — such as

Live Nation in this case — nonetheless “has both the initial

burden of production and the ultimate burden of persuasion

on a motion for summary judgment.” Nissan Fire & Marine

Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th

Cir. 2000) (citations omitted). The moving party may

discharge its initial burden by “show[ing] that the nonmoving

party does not have enough evidence of an essential element

to carry its ultimate burden of persuasion at trial.” Id. But,

“to carry its ultimate burden of persuasion on the motion, the

moving partymust persuade the court that there is no genuine

issue of material fact.” Id.

Where “a moving party carries its burden of production,

the nonmoving party must produce evidence to support its

claim or defense.” Id. at 1103 (citations omitted). We may

4

In reaching its contrary conclusion, the district court relied on another

case with somewhat analogous facts, quoting it for the proposition that

“Plaintiff asks the Court to simply assume that [Defendants] must have

cropped the [CMI] and must have possessed the requisite intent.” (quoting

William Wade Waller Co. v. Nexstar Broad., Inc., No. 4-10-CV-00764

GTE, 2011 WL 2648584, at *5 (E.D. Ark. July 6, 2011) (alterations in the

district court’s opinion). This reliance was misplaced, as, again, the

statute does not require that Live nation have “cropped” the CMI,

intentionally or otherwise.
16 FRIEDMAN V. LIVE NATION MERCHANDISE

assume that Live Nation carried its initial burden of

production in its motion for partial summary judgment. 

Contrary to the district court’s assertion, however, Friedman

did produce evidence supporting his claim. Most

importantly, Friedman produced the images as they appeared

on Live Nation’s merchandise and the same images as they

had appeared on Sony’s website and in his book. In his

motion for summary judgment, he compared them,

demonstrating that there were striking similarities.

For example, some of the photographs used in Live

Nation’s calendar included alterations, such as tint effects and

added logos, that Friedman had authorized only for the Sony

website. Photos that appeared in the Style Guide appeared to

have been scanned from Friedman’s book, as they contained

captions and other layout features that appeared in that source

alone. The images on Live Nation’s products did not include

copyright information that had been present on the earlier

versions.

“[A] ‘striking similarity’ between the works may give rise

to a permissible inference of copying.” Baxter v. MCA, Inc.,

812 F.2d 421, 423 (9th Cir. 1987). Here, the fact that the

photographs used by Live Nation were exact copies of the

images precisely as they appeared on Sony’s website and in

Friedman’s book gives rise to the compelling inference that

Live Nation’s photographs were directly copied from those

sources. Because the only material difference in the Live

Nation versions was that the CMI was missing, it was

necessarily the case that the CMI had been removed on the

copied version.

The only question, then, is whether the evidence as a

whole permits a reasonable inference that Live Nation knew
FRIEDMAN V. LIVE NATION MERCHANDISE 17

of the removal of the CMI. As to this question, a reasonable

jury could certainly conclude that Live Nation had knowledge

that photographs are often copyrighted. Indeed, Live

Nation’s 2009 employee email indicates its awareness that

Friedman himself often held the copyrights to photographs of

Run-DMC. Furthermore, Live Nation has never offered any

explanation of how it came to possess the images. It did,

however, provide the declaration of one of its officers, who

asserted that his “investigation . . . uncovered no evidence

that [Live Nation] ever obtained any of Mr. Friedman’s

claimed photographs of Run-DMC from any website.”

(emphasis added). A jury could draw an adverse inference

from this artfully worded language, which carefully avoids

either an outright denial that Live Nation copied the

photographs knowing that the CMI had been removed or an

explanation as to what the investigation did uncover about the

origin of the photographs.

At bottom, Live Nation’s argument amounts to a claim

that Friedman was required to produce direct evidence of

Live Nation’s knowledge of the CMIremoval. That is not the

law. This court has long recognized that “circumstantial

evidence can be used to prove any fact.” United States v.

Ramirez-Rodriquez, 552 F.2d 883, 884 (9th Cir. 1977). We

have noted in particular that whether a party had knowledge

of a particular circumstance “is a question of fact subject to

demonstration in the usual ways, including inference from

circumstantial evidence.” Harrington v. Scribner, 785 F.3d

1299, 1304 (9th Cir. 2015) (quoting Farmer v. Brennan,

511 U.S. 825, 841–42 (1994)). Indeed, whenever state of

mind is at issue, “‘direct proof’ of one’s specific wrongful

intent is ‘rarely available’” and so recourse to circumstantial

evidence is most often necessary. United States v. Dearing,
18 FRIEDMAN V. LIVE NATION MERCHANDISE

504 F.3d 897, 901 (9th Cir. 2007) (quoting United States v.

Marabelles, 724 F.2d 1374, 1379 (9th Cir. 1984)).

Live Nation is wrong, therefore, that the evidence in the

record as a whole is not consistent with a reasonable, if not

particularly strong, inference that Live Nation knew of the

removal of the CMI when it distributed Friedman’s

photographs. Because Friedman had therefore discharged his

burden of production at summary judgment, the burden

shifted back to Live Nation “to carry its ultimate burden of

persuasion” by “persuad[ing] the court that there is no

genuine issue of material fact.” Nissan Fire, 210 F.3d at

1102. It might have done so by providing some explanation

for how it came to possess Friedman’s images — missing

their CMI — in the first place, establishing its lack of

knowledge and negating the inference drawn from the

juxtaposition of the photographs.

We recently employed a similar burden-shifting approach

in another copyright case. In Adobe Systems Inc. v.

Christenson, 809 F.3d 1071, 1079 (9th Cir. 2015), we held

that when a party asserts the first sale affirmative defense, its

burden at summary judgment requires it only to produce

“evidence sufficient for a jury to find lawful acquisition of

title, through purchase or otherwise, to genuine copies of the

copyrighted software.” If the copyright holder asserts that its

acquisition could not have been lawful because “the software

was never sold, only licensed, the burden shifts back to the

copyright holder to establish such a license or the absence of

a sale.” Id. We noted that this rule “accords with . . . our

general precedent that fairness dictates that a litigant ought

not have the burden of proof with respect to facts particularly

within the knowledge of the opposing party.” Id.
FRIEDMAN V. LIVE NATION MERCHANDISE 19

So too here. How Live Nation came to possess

Friedman’s photographs — and thus whether it had

knowledge that the CMI had been removed — is a fact

“particularly within” Live Nation’s knowledge. It would be

unfair to burden Friedman at the summary judgment stage

with proving that knowledge with greater specificity than he

did. We therefore reverse the district court’s decision

granting summary judgment to Live Nation on Friedman’s

CMI claim.

II. Statutory Damages

The Copyright Act provides that “the copyright owner

may elect, at any time before final judgment is rendered, to

recover, instead of actual damages and profits, 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 . . . .” 17 U.S.C.

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

provision 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. 

See Walt Disney Co. v. Powell, 897 F.2d 565, 569 (D.C. Cir.

1990). The only issue on appeal is the number of infringers.5

5 As to the number of works infringed, the district court said that it was

“not clear” that it could “decide the issue of the number of works on the

current record,” but that “[t]he number of infringed works is likely either

five (the number of Friedman’s photographs that have been infringed) or

two (the number of Friedman’s copyrighted books that have been

infringed).” That ruling is not at issue on appeal.
20 FRIEDMAN V. LIVE NATION MERCHANDISE

We may assume for present purposes that, as Friedman

claims, Live Nation sold infringing merchandise to 104

separate retailers. Our question is whether, applying

Columbia Pictures, Friedman is entitled under the statute to

104 separate awards, because the retailers were each jointly

and severally liable with Live Nation but not collectively

jointly and severally liable for the infringement of any one

work.

In Columbia Pictures, the defendant owned three

television stations — also defendants in the suit — each of

which infringed works owned by the plaintiff. We concluded

that the plaintiff was entitled to separate awards with regard

to each of the three stations, which were “separate

infringers.” 106 F.3d at 294. Looking to the text of Section

504(c)(1), we explained that “when statutory damages are

assessed against one defendant or a group of defendants held

to be jointly and severally liable, each work infringed may

form the basis of only one award, regardless of the number of

separate infringements of that work.” Id. (emphasis added). 

On the other hand, Columbia Pictures explained, legislative

history indicated 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.” Id. (emphasis added) (quoting H.R.

Rep. No. 94-1476, 94th Cong., 2d Sess., at 162). Because the

stations were each jointly and severally liable with the

defendant but not with each other, we concluded, the plaintiff

was entitled to three separate awards. Id. at 294–95 & 294

n.7.

A prominent treatise provides a hypothetical (much

discussed by the parties and the lower court) explaining an

analogous situation:
FRIEDMAN V. LIVE NATION MERCHANDISE 21

If each defendant is liable for only one of the

several infringements that are the subject of

the lawsuit, then each defendant will be liable

for a separate set of statutory damages (each

with its own minimum). Suppose, for

example, a single complaint alleges

infringements of the public performance right

in a motion picture against A, B, and C, each

of whom owns and operates her own motion

picture theater, and each of whom, without

authority, publicly performed plaintiff’s

motion picture. 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

statutorydamage award.Suppose, further, that

D, without authority, distributed plaintiff’s

motion picture to A, B, and C. Although 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. Therefore, 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. However, D’s

participation will not create a fourth set of

statutory damages.

Nimmer on Copyright § 14.04[E][2][d] (2016) (emphasis

added).

Friedman argues that Columbia Pictures governs the

situation in this case, as a number of “downstream infringers”

— retailers to whom Live Nation distributed infringing

merchandise — are each jointly and severally liable for
22 FRIEDMAN V. LIVE NATION MERCHANDISE

infringement with Live Nation, but not with each other. As

in that case, he contends, he should be entitled to a separate

award for each “unit” of infringers jointly and severally

liable.

The district court rejected this argument. It surveyed a

number of recent district court decisions that “rejected

outright both the [Columbia Pictures] decision and the

Nimmer hypothetical, finding them inapplicable to situations

involving large numbers of infringements.” (quoting Arista

Records LLC v. Lime Grp. LLC, 784 F. Supp. 2d 313, 318

(S.D.N.Y. 2011)); see alsoBouchat v. Champion Prods., Inc.,

327 F. Supp. 2d 537, 553 (D. Md. 2003) (“[Professor

Nimmer] did not address, and doubtlessly did not consider, a

coordinated mass marketing operation such as [the

Defendant’s] business.”). Like those cases, the district court

concluded that, due to the large number of downstream

infringers, granting Friedman a separate award for each

would “lead to an absurd result.” The court acknowledged

that Columbia Pictures was “binding precedent” but

concluded that this case was “distinguishable”: whereas

Columbia Pictures “involved television shows and only

[three] downstream infringers . . . , [t]his case involves

photographs in a mass-marketing campaign with 104

downstream infringers,” and there was “nothing in Columbia

that suggests its reasoning should be applied to a massmarketing campaign such as that at issue in this case.”

We cannot accept this rationale. Columbia Picturesis the

law of this circuit, and nothing in the opinion — or in the text

of the statute itself — admits of a “mass-marketing”

exception. Creating such an exception would mean reading

the statute in two different ways depending on how many

down-the-line violations there were. And it would require us
FRIEDMAN V. LIVE NATION MERCHANDISE 23

to come up with some definition of the number of violations

required to invoke the exception, without any apparent basis

for doing so.

We do agree, though, that Friedman reads Columbia

Pictures too broadly, albeit for a different reason. Our

holding in Columbia Pictures 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. Before the question of damages was raised, those

parties had already been adjudicated liable for infringement,

and jointly and severally liable with another infringer. That

is not true in this case. Here, Friedman first asserted that

there were 104 downstream infringers only after the question

of Live Nation’s liability for its own infringement had been

resolved, not having named any of those downstream

infringers as defendants in the case.

Columbia Pictures’s emphasis on the status of the

downstream infringers as defendants is grounded in the

language of the statute. Section 504(c)(1) provides for “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 . . . .” 17 U.S.C.

§ 504(c)(1) (emphasis added). 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.

This interpretation is supported by the legislative history

on which Columbia Pictures relied, which explains that

“where separate infringements for which two or more
24 FRIEDMAN V. LIVE NATION MERCHANDISE

defendants are not jointly liable are joined in the same action,

separate awards of statutory damages would be appropriate.” 

H.R. Rep. No. 94-1476, 94th Cong., 2d Sess., at 162

(emphasis added). Congress did not, therefore, intend for

courts, in determining the amount of damages, to engage in

an entirely separate adjudication as to the liability of a large

group of people not parties to the case, with respect to

separate infringing acts not involved in the action. To the

contrary, the situation Congress contemplated was one like

that in Columbia Pictures, in which each jointly and severally

liable pair of infringers was “joined in the same action” and

liable for the same infringements.

As the district court rightly recognized, the broad reading

of Columbia Pictures 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. This risk has

become particularly acute in the internet era, where rapid

peer-to-peer file sharing has enabled mass piracy of books,

films, music, and other copyrighted materials. See, e.g.,

Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,

545 U.S. 913, 920 (2005).

A district court decision illustrates the problem. In Arista

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

(S.D.N.Y. 2011), a record company sued the maker of an

online file-sharing program that allowed users to download

recordings and thereby make them available for peer-to-peer

sharing. The plaintiffs identified “approximately 11,000

sound recordings that they allege[d] have been infringed

through the LimeWire system.” Id. at 315. Relying on

Columbia Pictures and the Nimmer hypothetical, the

plaintiffs argued that they were entitled to recover separate
FRIEDMAN V. LIVE NATION MERCHANDISE 25

statutory damage awards for each downstream infringer —

i.e., sharer — of each infringed work. The court rejected this

position, noting that under this theory “Defendants’ damages

could reach into the trillions” of dollars. Id. at 317. Like the

Arista Records court, we cannot conclude that Congress

intended such an exorbitant result, although we reach that

conclusion for different reasons than did the Arista Records

court.

We therefore hold that 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. Because Friedman did

not join any of his alleged downstream infringers as

defendants in this case, the district court correctly held that he

was limited to one award per work infringed by Live Nation. 

We therefore affirm the district court’s statutory damages

ruling.

CONCLUSION

Because there was sufficient evidence in the record to

allow a reasonable jury to conclude that Live Nation willfully

infringed Friedman’s copyrights and knowingly removed

CMI from the images it used, we reverse the district court’s
26 FRIEDMAN V. LIVE NATION MERCHANDISE

grant of summary judgment to Live Nation on those issues. 

We affirm the district court’s ruling as to statutory damages.

AFFIRMED IN PART AND REVERSED IN PART.