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Services agreement’s failure to nail down responsibility for third-party permissions leads to $600K copyright judgment against customer

When drafting a services agreement, it can be a big mistake for a customer to fail to establish clear lines of responsibility about who will obtain any third-party authorizations that might be needed. A California business owner got an expensive lesson on that subject when he hired a Web developer to revamp the business’s Website. The revamped Website included three copyrighted photographs that had been taken, and were owned, by a professional photographer, who filed suit for copyright infringement.

The business owner claimed that he had thought that the Web developer would take care of obtaining any necessary copyright clearances.  Evidently, however, the trial judge and jury were not impressed: the jury found the business owner liable for contributing to the copyright infringement and awarded maximum statutory damages of $150,000 for each of the three photographs, plus attorney fees and other amounts, for a total of more than $636,000; the appeals court affirmed the judgment.

The case: Erickson Productions, Inc. v. Kast, No. 15-16801 (9th Cir. Apr. 16, 2019); proceedings below, e.g., No. 5:13-cv-05472-HRL (N.D. Cal. May 21, 2018).