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JS-6

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 12 ROXANA TOWRY RUSSELL, d/b/a Case No. 2:19-cv-5495-MWF (JCx) 13 ROXY RUSSELL DESIGN, The Honorable Michael W. Fitzgerald, 14 Plaintiff, United States District Judge 16 WALMART INC., a Delaware JUDGEMENT AFTER TRIAL 17 corporation; WAL-MART.COM USA, LLC, a California Limited Liability 18 Corporation,

19 Defendant. 20

21 This action came on regularly for jury trial between February 7, 2023 and 22 February 14, 2023, in Courtroom 5A of this United States District Court. Plaintiff 23 Roxanna Russell was represented by Guy Ruttenberg, Esq. and Bruce D. Kuyper 24 Esq. of Ruttenberg IP Law, a Professional Corporation. Defendant Walmart Inc., 25 and Wal-Mart.com USA, LLC (collectively “Walmart”) was represented by Bijal 26

V. Vakil, Esq., Jeremy T. Elman, Esq., Rebecca Delfiner, Esq., and Craig D.

27 Gaver, Esq. of Allen and Overy, LLP. 28 A jury of eight persons was regularly empaneled and sworn. Witnesses were 2 sworn and testified, and exhibits were admitted into evidence. 3 After Plaintiff Roxana Russell rested, Defendant Walmart made a motion 4 pursuant to Federal Rule of Civil Procedure 50(a) for a judgment as a matter of law 5 as to all claims. The Court denied the Motion except as to the issue of punitive 6 damages, which were available only for the unfair competition claim under 7 California common law. The Court held that there was insufficient evidence for a 8 reasonable jury to find that there was corporate ratification of the conduct giving 9 rise to Plaintiff Roxana Russell’s claims as required for an award of punitive 10 damages under California law. Accordingly, the Motion was GRANTED on the 11 issue of punitive damages. 12 Before the action was submitted to the jury, the Court also concluded that 13 Plaintiff Roxana Russell’s unfair competition claim under California common law 14 was duplicative of her federal false designation of origin claim. Therefore, the 15 Court withdrew that claim from the jury and advised that it would direct the verdict 16 on that claim in accordance with the jury’s verdict on the federal false designation 17 of origin clam. 18 The Court also concluded that Plaintiff Roxana Russell’s unfair competition 19 claim under California Business and Professions Code section 17200 was 20 derivative of the other claims being submitted to the jury and the damages, if any, 21 would be awarded by the Court given only equitable remedies are available for that 22 claim. Therefore, the Court withdrew the statutory unfair competition law claim 23 from the jury and advised that it would direct the verdict on that claim. 24 25 JURY VERDICT 26 After hearing the evidence and arguments of counsel, the eight-person jury 27 was duly instructed by the Court and the cause was submitted to the jury. The jury 28 deliberated and thereafter returned a verdict as follows: 2 COPYRIGHT INFRINGEMENT CLAIMS 3 QUESTION NO. 1: 4 Did Plaintiff Roxana Russell prove that Defendant Walmart is liable for 5 copyright infringement of the following copyrighted materials (based on direct 6 infringement or vicarious infringement or contributory infringement)? 7 8 A. Medusa photograph: X YES ____NO B. Polyp photograph: X YES ____NO 9 C. Medusa sculpture: X YES ____NO 10 D. Polyp sculpture: X YES ____NO E. Ophelia sculpture: X YES ____NO 11 If you answered YES to any of Question Nos. 1A-1E, please answer Question No. 2. 12 If you answered NO to all of Question Nos. 1A-1E, please skip to Question No. 8. 13 14 QUESTION NO. 2: 15 Did Defendant Walmart prove that it is entitled to the online service 16 provider affirmative defense (Digital Millennium Copyright Act)? 17 YES______ NO X . 18 If you answered YES, please skip to Question No. 8. 19 If you answered NO, please answer Question No. 3. 20 21 QUESTION NO. 3: 22 What amount of actual damages do you award Plaintiff Roxana Russell 23 based on Defendant Walmart’s copyright infringement? 24 $ 22,000 . 25 Please answer Question No. 4. 26 27 QUESTION NO. 4: 28 What amount of Defendant Walmart’s profits do you award Plaintiff Roxana 2 Russell based on Defendant Walmart’s copyright infringement? 3 $ $5,000 . 4 Please answer Question No. 5. 5 6 QUESTION NO. 5: 7 Did Roxana Russell prove independent economic value for two or five 8 copyrighted “works”? 9 X Five Works (as claimed by Plaintiff Roxana Russell) 10 Two Works (as claimed by Defendant Walmart) 11 If you answered “Five Works”, please answer Question No. 6. 12 If you answered “Two Works”, please skip to Question No. 7. 13 14 QUESTION NO. 6: 15 For each of the five works, what amount of statutory damages do you award 16 Plaintiff Roxana Russell? 17 Your award must be between $750 and $30,000 per work, or up to $150,000 per work if you find that the infringement of that work was willful. 18

19 A. Medusa photograph: $ $15,000 . B. Polyp photograph: $ $15,000 . 20 C. Medusa sculpture: $ $15,000 . 21 D. Polyp sculpture: $ $15,000 . E. Ophelia sculpture: $ $15,000 . 22 Please skip to Question No. 8. 23

24 QUESTION NO. 7: For each of the two works, what amount of statutory damages do you award 25 Plaintiff Roxana Russell? 26 Your award must be between $750 and $30,000 per work, or up to $150,000 per 27 work if you find that the infringement of that work was willful. 28 BA.. PShcuoltpotgurraepsh s $$________________________________________________ 2 Please answer Question No. 8. 3 4 CLAIMS FOR FALSE ADVERTISING AND UNFAIR COMPETITION 5 QUESTION NO. 8: 6 Did Plaintiff Roxana Russell prove that Walmart is liable for false 7 advertising? 8 YES______ NO X 9 Please answer Question No. 9. 10 11 QUESTION NO. 9: 12 Did Plaintiff Roxana Russell prove that Walmart is liable for unfair competition 13 (false designation of origin)? 14 YES______ NO X . 15 If you answered YES to either Question Nos. 8 or 9, please answer Question No. 10. 16 If you answered NO to both Question Nos. 8 and 9, please sign and return this form. 17 18 QUESTION NO. 10: 19 What amount of damages do you award Plaintiff Roxana Russell for the 20 costs of corrective advertising? 21 $ NONE $0.00 . 22 23 THE COURT’S DIRECTED VERDICT 24 Pursuant to the jury’s verdict on the federal false designation of origin claim 25 (Question No. 9), the Court hereby directs the verdict in favor of Defendant 26 Walmart on Plaintiff Roxana Russell’s unfair competition claim under California 27 common law. 28 Pursuant to the jury’s verdict on all claims submitted to it, the Court hereby directs the verdict in favor of Defendant Walmart on Plaintiff Roxana Russell’s 2 statutory unfair competition claim under California Business and Professions Code 3 section 17200. 4 To the extent Plaintiff Roxana Russell’s statutory unfair competition claim is 5 premised on violations of the Copyright Act, it is preempted by federal law. See 6 Media.net Advert. FZ-LLC v. NetSeer, Inc., 156 F. Supp. 3d 1052, 1074 (N.D. Cal. 7 2016) (“To the extent that Plaintiff brings this [UCL] claim based on conduct 8 involving subject matter covered by the Copyright Act, the claim is preempted if it 9 implicates rights contained in that Act.”) (citing Kodadek v. MTV Networks, Inc., 10 152 F.3d 1209 (9th Cir. 1998)). Accordingly, because Plaintiff Roxana Russell 11 prevailed only on her copyright infringment claims, the jury’s verdict does not 12 support a finding of liability on Plaintiff Roxana Russell’s California statutory 13 unfair competition law claim, and the Court need not award equitable damages. 14 15 ELECTION OF DAMAGES ON COPYRIGHT CLAIM 16 On February 15, 2023, the Court Ordered Plaintiff to file a notice confirming 17 her election of damages as to the copyright infringment claims. (Order (Docket 18 No. 359)). 19 Pursuant to the Court’s Order, Plaintiff filed a Notice of Election of 20 Damages on February 21, 2023, electing the statutory damages awarded by the 21 jury’s verdict as to the copyright infringment claims in the amount of $75,000.00. 22 (Notice (Docket No. 368)). 23 24 FINAL JUDGMENT 25 Now, therefore, pursuant to Rules 54 and 58 of the Federal Rules of Civil 26 Procedure, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that 27 final judgment in this action be entered as follows: 28 1 1. On Plaintiff Roxana Russell’s claim for relief for violations of the 2 Copyright Act (17 U.S.C. § 501) (Counts I-III in Complaint): 3 Judgment is entered in favor of Plaintiff Roxana Russell and against 4 Defendant Walmart in the amount of $75,000.00. 5 2. On Plaintiff Roxana Russell’s claim for relief for violations of the 6 Lanham Act (15 U.S.C. § 1125(a)), premised on Defendant 7 Walmart’s false designation of origin (Count IV in Complaint): g Judgment is entered in favor of Defendant Walmart. Plaintiff Roxana 9 Russell shall take nothing on her false designation of origin claim. 10 3. On Plaintiff Roxana Russell’s claim for relief for violations of the Lanham Act (15 U.S.C. § 1123(a)), premised on Defendant Walmart’s alleged false advertising (Count V in Complaint): Judgment is 3 entered in favor of Defendant Walmart. Plaintiff Roxana Russell shall 4 take nothing on her false advertising claim.

15 4. On Plaintiff Roxana Russell’s California common law unfair 16 competition claim (Count VI in Complaint): Judgment is entered in favor of Defendant Walmart. Plaintiff Roxana Russell shall take " nothing on her common law unfair competition claim. 8 5. On Plaintiff Roxana Russell’s statutory unfair competition claim (Cal. ” Bus. & Prof. Code § 17200, et. seq.) (Count VII in Complaint): 20 Judgment is entered in favor of Defendant Walmart. Plaintiff Roxana a1 Russell shall take nothing on her statutory unfair competition claim. 22 6. Plaintiff may seek to recover attorney’s fees and costs as provided by 23 law.

25 || Dated: May 16, 2023. . □ 26 Cfpde 27 MICHAEL W. FITZGERALD | 3g United States District Judge

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