Erickson Productions Inc v. Kraig R Kast

Background

Erickson Productions Inc. and Jim Erickson sued Kraig R. Kast, alleging that three copyrighted photographs appeared without authorization on the website for Kast’s business, Atherton Trust. Kast maintained that his website developer, Only Websites, copied the photographs without his consent. A prior jury found Kast liable for contributory and vicarious copyright infringement and awarded $450,000 in statutory damages. The Ninth Circuit affirmed the contributory-liability verdict, reversed other portions of the judgment, and sent the willfulness issue back for further proceedings.

After another appeal, the Ninth Circuit ordered a jury trial on willfulness and statutory damages. At the April 2024 trial, the jury found that Kast’s contributory infringement was willful as to all three photographs and awarded $15,000 per photograph, for a total of $45,000. The court entered judgment on May 24, 2024. Kast then represented himself and filed three post-trial motions: a renewed motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), a motion for a new trial under Rule 59, and a motion for sanctions against plaintiffs’ counsel under Rule 11.

Renewed Motion for Judgment as a Matter of Law

Kast asked the court to change the jury’s finding from willful infringement to negligence and reduce the damages award. He argued that the evidence did not show that he knew about Only Websites’ infringement or acted recklessly or with willful blindness. He relied in part on the Ninth Circuit’s earlier discussion that the evidence at the first trial might have shown negligence but was less clear as to recklessness, willful blindness, or actual knowledge.

The court denied the motion. It explained that the Ninth Circuit had not decided that Kast was merely negligent; it had required a retrial using proper instructions. Applying the Rule 50(b) standard, which requires the court to uphold the verdict if substantial evidence supports it, the court identified evidence including Kast’s emails directing Only Websites to use content from competitors’ websites and to emulate the Wells Fargo website, including its photographs. The court also cited evidence supporting an inference that Kast intended to publish the photographs without taking steps to determine whether they were licensed. The court concluded that a reasonable jury had a legally sufficient evidentiary basis to find willfulness.

Motion for a New Trial

Kast argued that the verdict was against the clear weight of the evidence, that the jury received improper instructions, and that the $45,000 award was excessive. The court rejected each category of argument.

On the evidence, the court again held that the Ninth Circuit had not previously resolved the willfulness question. The earlier appellate decision had discussed direct financial benefit in connection with vicarious liability, not willfulness, and vicarious liability was not at issue in the second trial.

On the jury instructions, the court held that Kast waived his challenge to an instruction concerning direct financial benefit because he did not propose such an instruction. He also waived a challenge to a preliminary contributory-infringement instruction because he and Erickson had jointly proposed it. The court rejected his challenge to the willfulness instruction because he did not specifically address the instruction that was given or the court’s reasoning. The court also upheld its decision not to require proof of the amount of statutory damages by a preponderance of the evidence. According to the court, that burden applied to proving willfulness, while the jury had broad discretion to set statutory damages within the statutory range. The court further rejected Kast’s claim that he should have been allowed to present an innocent-infringer defense, noting that he had not raised it in his appeals and that the Ninth Circuit had remanded only for a retrial on willfulness.

As to damages, Kast argued that $45,000 was constitutionally excessive because the license fees for the photographs were $700 each, he received no direct financial benefit, Erickson had previously received $11,250 from Only Websites, and he had not harmed Erickson. The court held that the $15,000-per-photograph award was within the permissible range for willful infringement and was not grossly excessive, unsupported by the evidence, or based on speculation. The court denied the motion for a new trial.

Rule 11 Sanctions

Kast sought sanctions against plaintiffs’ counsel based on counsel’s statement during the jury-instruction conference that a Ninth Circuit model instruction did not pertain to copyright damages. Kast characterized the statement as an intentional and knowing misrepresentation.

The court denied the sanctions motion. It understood the statement in context as an unintentional reference to statutory damages rather than copyright damages. The court called it a slip of the tongue and found that it was not material to the court’s ruling on the damages instruction. The court found no sanctionable conduct.

Disposition

The court denied Kast’s renewed motion for judgment as a matter of law, motion for a new trial, and motion for Rule 11 sanctions.