Wednesday, March 8, 2017
Ninth Circuit Revives Damages Award to Sculptor
Billionaire Must Pay for Passing Off Copies of Plaintiff’s Works, Panel Says
From Staff and Wire Service Reports
A sculptor whose work was copied by real estate billionaire Igor Olenicoff, the world’s 156th richest person according to Forbes, is entitled to collect the $450,000 a federal jury awarded him, the Ninth U.S. Circuit Court of Appeals has ruled.
In an unpublished memorandum Monday, the panel said U.S. District Judge Andrew Guilford of the Central District of California erred in vacating the jury award to Don Wakefield and limiting him to injunctive relief. It also revived a claim that Guilford had ruled time-barred, raising the possibility of additional damages.
Wakefield, who creates large sculptures out of stone and metal, sued Olenicoff and his real estate company, Olen Properties Corp. , He claimed in the 2012 complaint that Olen Properties inquired into buying some of his works, and that he sent it a link to his website so that it could see what his pieces looked like.
Four years later, he alleged, he saw what he believed to be one of those pieces, “Untitled,” at an Olenicoff property in Newport Beach. But in January 2010, he saw more sculptures at other Olenicoff properties that were either exact replicas of or derivative of “Untitled.”
Art publications said Olenicoff passed off the sculptures as the work of Chinese sculptor Zhou Hong and claimed he had bought them in Beijing during the 2008 summer Olympics. He also said he had one of the sculptures modified with the addition of a stainless steel form representing a teardrop.
At the time, The Art Newspaper reported, he refused to confirm or deny whether the sculptures were copies of Wakefield’s original work. Wakefield’s sculpture would cost $160,000 whereas the Beijing-made knockoffs would cost approximately $35,000 each, The Art Newspaper reported.
Jurors found in favor of Wakefield, but Guilford vacated the damages award, ordering the defendants to destroy the knockoffs—which they did—or deliver them to the plaintiff.
The appellate panel—Judges Susan Graber, Jay Bybee and Morgan Christen—said the damages should have been allowed to stand.
“The jury’s award of $450,000 in actual damages was ‘sufficiently supported by evidence’ and was ‘non-speculative,’” the panel wrote. “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.”
Partial Summary Judgment
The panel did, however, affirm a grant of partial summary to the defendants on Wakefield’s claim for indirect profits. Wakefield failed to create a triable issue as to whether the defendants profited from the infringement, the judges said.
Olenicoff sought partial summary judgment on statute-of-limitations grounds regarding Wakefield’s discovery of the infringed-upon sculptures. The judge granted the motion in regard to the Newport Beach sculpture, but denied it for the other six works.
The panel found that Guilford should have denied both motions.
“A reasonable jury could find that plaintiff had neither actual nor constructive knowledge … that the first sculpture was a copy of ‘Untitled,’ rather than ‘Untitled’ itself,” the panel wrote. The judges also held that Guilford had discretion to order that the infringing sculptures be destroyed.
According to the website “Hyperallergic,” sculptor John Raimondi sued Olenicoff at the same time as Wakefield. Raimondi was also successful in his lawsuit and was awarded $640,000, though the court ordered that the sculptures, rather than be destroyed, should have plaques included that identify Raimondi as the artist.
The case is Wakefield v. Olenicoff, 15-55649.
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