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J. Bowman Neely
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Chase Jarvis is an accomplished professional photographer who specializes in outdoor sports images. Over several years, he created more than 4,000 slides for K2, a seller of outdoor sporting goods such as skis, snowboards, skates and bikes. Uses of the images embodied in the slides were governed by a series of licenses. K2 lost significant numbers of Jarvis slides, failed to provide contractually required photo credits, and miscredited one image to another photographer. Jarvis’ images were used by K2 in ways not permitted by the licenses and after the applicable licenses expired, and K2 improperly provided images to third parties who then used the images.
On Jarvis’ behalf, Hendricks & Lewis filed an action against K2 for copyright infringement, breach of contract, conversion and violation of the Lanham Act. Hendricks & Lewis obtained a preliminary injunction precluding further use of the Jarvis images, engaged in discovery and pretrial motion practice, obtaining summary judgment on most of the liability issues. Hendricks & Lewis tried the case to the Court in March 2005. The Court found that K2 had lost 396 slides, failed to give credit in 105 instances, miscredited one image and entered comprehensive findings of fact and conclusions of law.
Although the court ruled in Jarvis’ favor in many respects and awarded him damages, Jarvis took issue with certain of the court’s rulings on damages and also as to the applicability of the collective works privilege under 17 U.S.C. § 201(c). On Jarvis’ behalf Hendricks & Lewis filed an appeal with the Ninth Circuit Court of Appeals, designated the record on appeal and briefed the issues and argued the appeal. In addition, Hendricks & Lewis coordinated with photography organizations that were interested in the Section 201(c) issues and wished to file amicus curie briefs.
The Ninth Circuit reversed the district court’s ruling as to Section 201(c) and remanded for determinations of willfulness, actual and statutory damages and attorneys’ fees. On Jarvis’ behalf, Hendricks & Lewis fully briefed the issues on remand and as raised by the district court.
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