Amy Sullivan v. Flora, Inc.
936 F.3d 562
7th Cir.2019Background
- Amy Sullivan, a freelance graphic artist, created 33 illustrations for two Flora, Inc. advertising campaigns and granted Flora exclusive rights for those campaigns under a written agreement with a production intermediary.
- Sullivan registered the illustrations with the U.S. Copyright Office in two group registrations: a 17-piece "7 Sources" collection and a 16-piece "Flor‑Essence" collection.
- Sullivan sued Flora for copyright infringement after discovering Flora used the illustrations beyond the agreed campaigns; she elected statutory damages instead of actual damages.
- The district court treated each of the 33 illustrations as separate "works" for statutory‑damages purposes and the jury awarded $3.6 million (33 × willful statutory awards). The jury also found willful infringement and sole authorship by Sullivan.
- On appeal Flora challenged (1) the availability of 33 separate statutory awards under 17 U.S.C. § 504(c)(1), (2) a § 412 timing defense (that infringement began before registration), and (3) joint‑authorship as a defense to liability.
- The Seventh Circuit vacated the damages judgment and remanded for factfinding on whether individual illustrations have independent economic value (i.e., are "one work"), but affirmed that Flora waived the § 412 timing defense and waived post‑verdict challenge to joint authorship; it also affirmed denial of attorneys’ fees to Sullivan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper unit for statutory damages under § 504(c)(1) | Sullivan: each of the 33 registered illustrations is a separate "one work" and entitled to its own statutory award. | Flora: illustrations are parts of two compilations (the two collections/ campaigns); § 504(c)(1) limits statutory damages to one award per compilation (two awards). | Vacated and remanded: court requires factfinding whether each illustration has independent economic value (standalone "one work") or is part of compilations; group registration alone insufficient. |
| Applicability of § 412 timing bar to statutory damages | Sullivan: not addressed at trial; statutory damages available because registration dates preceded some uses. | Flora: infringement began before registration, so § 412 bars statutory damages for those infringements. | Affirmed waiver: Flora raised § 412 too late at damages phase; defense treated as waived. |
| Joint authorship as defense to infringement | Sullivan: she was sole author; registrations in her name support sole authorship. | Flora: Joseph Silver’s contributions made works joint authorship, negating exclusive rights. | Affirmed waiver of appellate review: Flora failed to renew Rule 50(b) post‑verdict; even on merits jury reasonably found Sullivan sole author. |
| Attorneys’ fees under 17 U.S.C. § 505 | Sullivan: prevailing party entitled to fees given large statutory award. | Flora: opposed; litigation was hard‑fought and close; fees discretionary. | Affirmed: district court did not abuse discretion in denying fees under Fogerty factors. |
Key Cases Cited
- Bryant v. Media Right Prods., Inc., 603 F.3d 135 (2d Cir. 2010) (held that an album is a compilation and all parts of a compilation count as one work for § 504(c)(1))
- Twin Peaks Prods. v. Publications Int’l Ltd., 996 F.2d 1366 (2d Cir. 1993) (permitted separate statutory awards where works were issued independently and later compiled)
- Gamma Audio & Video, Inc. v. Ean‑Chea, 11 F.3d 1106 (1st Cir. 1993) (adopted an "independent economic value" test to determine whether works registered together are separate for § 504(c)(1))
- VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723 (9th Cir. 2019) (applies independent economic‑value analysis to determine whether items are separate works)
- Xoom, Inc. v. Imageline, Inc., 323 F.3d 279 (4th Cir. 2003) (treated collections as compilations but suggested mixed approach depending on facts)
- MCA Television Ltd. v. Feltner, 89 F.3d 766 (11th Cir. 1996) (used independent economic value test to assess whether items are separate works)
- Walt Disney Co. v. Powell, 897 F.2d 565 (D.C. Cir. 1990) (asks whether materials are distinct, viable works with separate economic value for § 504(c)(1))