FILED
NOT FOR PUBLICATION
MAR 06 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD WAKEFIELD, No. 15-55649
Plaintiff-Appellant, D.C. No.
8:12-cv-02077-AG-RNB
v.
IGOR OLENICOFF; OLEN MEMORANDUM*
PROPERTIES CORP.,
Defendants-Appellees.
DONALD WAKEFIELD, Nos. 15-55675
15-56137
Plaintiff-Appellee,
D.C. No.
v. 8:12-cv-02077-AG-RNB
IGOR OLENICOFF; OLEN
PROPERTIES CORP.,
Defendants-Appellants.
Appeals from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted February 9, 2017
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Pasadena, California
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
A jury found that Defendants Igor Olenicoff and Olen Properties Corp.
infringed on Plaintiff Donald Wakefield’s copyright in his sculpture Untitled by
commissioning the creation of six substantially similar sculptures. The jury
awarded Plaintiff $450,000 in actual damages. See 17 U.S.C. § 504(b). The
district court vacated that award, but granted Plaintiff injunctive relief, ordering
that Defendants either destroy the six infringing sculptures or turn them over to
Plaintiff. After Defendants opted for the former, the district court ordered the
destruction of the sculptures.
1. The jury’s award of $450,000 in actual damages was "sufficiently
supported by evidence" and was "non-speculative." Polar Bear Prods., Inc. v.
Timex Corp., 384 F.3d 700, 708 (9th Cir. 2004). From the evidence presented at
trial, the jury could have determined that the actual use made by Defendants of
Plaintiff’s work was worth $75,000 per infringing copy. Accordingly, we reverse
the district court’s entry of judgment as a matter of law and instruct the court to
reinstate the jury’s verdict.
2. The district court correctly granted partial summary judgment to
Defendants on the issue of indirect profits. Plaintiff failed "to create a triable issue
2
regarding whether [Defendants’] infringement at least partially caused the profits
that [Defendants] generated as the result of the infringement." Mackie v. Rieser,
296 F.3d 909, 911 (9th Cir. 2002). We therefore affirm this ruling.
3. The district court erred in granting partial summary judgment to
Defendants on statute-of-limitations grounds as to the first infringing sculpture that
Plaintiff found. A reasonable jury could find that Plaintiff had neither actual nor
constructive knowledge, see Roley v. New World Pictures, Ltd., 19 F.3d 479, 481
(9th Cir. 1994), that the first sculpture was a copy of Untitled, rather than Untitled
itself. We reverse and remand this issue for further proceedings.
4. The district court did not abuse its discretion in ordering the destruction
of the six infringing sculptures, nor was its decision to award injunctive relief
premised on an error of law or a clearly erroneous factual finding. See Columbia
Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1030 (9th Cir. 2013) (stating standard
of review for injunctive relief). Thus, we affirm the injunction.
5. The district court did not err in denying Defendants’ motion for judgment
as a matter of law on statute-of-limitations grounds as to the six sculptures that
Plaintiff first discovered in 2010. The jury found that Plaintiff had neither actual
nor constructive knowledge of the facts giving rise to his claims for copyright
3
infringement as to those six sculptures, and that finding was supported by
substantial evidence. We affirm this ruling.
AFFIRMED in part; REVERSED and REMANDED in part. Costs on
appeal awarded to plaintiff.
4