                                                                           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                           NOT FOR PUBLICATION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


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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.




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