App. 1
`
`FOR PUBLICATION
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`No. 17-56641
`D.C. No.
`2:16-cv-04295-
`DMG-JEM
`OPINION
`
`
`DESIRE, LLC, a California
`limited liability company,
`Plaintiff-Appellee,
`v.
`MANNA TEXTILES, INC., a New
`York corporation; A.B.N., Inc.,
`DBA Wearever, Inc., a New
`York corporation; TOP FASHION
`OF N.Y., INC., a New York
`corporation; Pride & Joys, Inc.,
`a New York corporation; 618
`MAIN CLOTHING CORP.,
`DBA 10 Spot, DBA Madgra,
`a New Jersey corporation,
`Defendants-Appellants.
`
`
`
`Appeal from the United States District Court
`for the Central District of California
`Dolly M. Gee, District Judge, Presiding
`Argued and Submitted March 5, 2019
`Pasadena, California
`Filed February 2, 2021
`
`

`

`App. 2
`
`Before: Kim McLane Wardlaw and Mark J. Bennett,
`Circuit Judges, and William K. Sessions III,*
`District Judge.
`Opinion by Judge Bennett;
`Partial Concurrence and
`Partial Dissent by Judge Wardlaw
`
`
`
`
`
`COUNSEL
`Aaron L. Renfro (argued), Samuel G. Brooks, Melinda
`Evans, and Scott P. Shaw, Call & Jensen APC, Newport
`Beach, California, for Defendants-Appellants.
`
`Stephen M. Doniger (argued) and Frank Gregory Ca-
`sella, Doniger Burroughs, Venice, California, for Plain-
`tiff-Appellee.
`
`
`
`OPINION
`BENNETT, Circuit Judge:
`
`
`
`Desire, LLC (“Desire”) sued Manna Textiles, Inc.
`
`(“Manna”), A.B.N., Inc. (“ABN”), Top Fashion of N.Y.,
`Inc. (“Top Fashion”), Pride & Joys, Inc. (“Pride & Joys”),
`and 618 Main Clothing Corp. (“618 Main”), as well as
`others who are no longer parties, for copyright in-
`fringement. The district court held, on summary judg-
`ment, that Desire owned a valid copyright in the fabric
`design that was the subject of the action (the “Subject
`Design”), and that the Subject Design was entitled to
`
`* The Honorable William K. Sessions III, United States Dis-
`
`trict Judge for the District of Vermont, sitting by designation.
`
`

`

`App. 3
`
`broad copyright protection. The jury returned a verdict
`for Desire, finding that Manna, ABN, and Top Fashion
`willfully infringed the Subject Design, and that Pride
`& Joys and 618 Main innocently infringed the Subject
`Design. Desire elected to claim statutory damages in
`lieu of actual damages, and the district court, based on
`a pretrial ruling on the question, assessed five stat-
`utory damages awards totaling $480,000 (with that
`entire amount assessed jointly and severally against
`Manna).
`
`On appeal, Manna, ABN, and Top Fashion chal-
`
`lenge the district court’s orders on summary judgment
`as well as its holding that Desire is entitled to receive
`multiple awards of statutory damages. Although we
`hold that the district court did not err in granting sum-
`mary judgment for Desire on the validity of its copy-
`right and the scope of the Subject Design’s copyright
`protection, we disagree with the district court’s holding
`that Desire is entitled to multiple statutory damages
`awards. We therefore affirm in part, reverse in part,
`vacate the judgment awarding Desire multiple awards
`of statutory damages, and remand to the district court
`for further proceedings.
`
`
`I. FACTUAL BACKGROUND AND PROCEED-
`INGS BELOW
`
`Desire is a Los Angeles-based fabric supplier. De-
`sire purchased the Subject Design, which is a two-
`dimensional floral print textile design identified as
`“CC3460,” and all rights to the Subject Design from
`
`

`

`App. 4
`
`Cake Studios, Inc. (“Cake”) for $475. Desire registered
`the Subject Design with the United States Copyright
`Office on June 26, 2015.
`
`A Cake designer “created [the Subject Design] us-
`
`ing their own imagery” in Adobe Photoshop. “CC3460
`is an original pattern created in Adobe Photoshop us-
`ing an original flower image created by [a Cake] de-
`signer which was then imported into Photoshop so that
`the Photoshop editing tools could be used to adjust,
`stylize and arrange the floral elements into the origi-
`nal artwork that became CC3460. There is no pre-
`existing artwork from Photoshop in design CC3460.”
`
`On October 15, 2015, Top Fashion, a women’s
`
`clothing manufacturer, purchased four yards of fabric
`bearing the Subject Design from Desire. Top Fashion
`used this fabric to secure a garment order from Ashley
`Stewart, Inc. (“Ashley Stewart”), a women’s clothing re-
`tailer. However, Top Fashion and Desire had a dispute
`over the fabric price. Top Fashion then showed the Sub-
`ject Design to Manna, a fabric supplier. Manna gave
`the Subject Design to its independent designer, Matty
`Mancuso, who in turn sent the design to Longwell Tex-
`tile (“Longwell”) in China with instructions to modify
`it. Upon receiving the modified design from Longwell,
`Mancuso replied, “After looking at this—don’t know if
`you change [sic] it enough?” A Longwell representative
`responded: “I changed 30-40% on original, pls kindly
`approve. . . .” Manna registered the design (the “Ac-
`cused Design”) with the United States Copyright Office
`on December 1, 2015.
`
`

`

`App. 5
`
`Between October 2015 and May 2016, Manna
`
`sold fabric bearing the Accused Design to ABN, Top
`Fashion, and Pride & Joys (the “Manufacturer De-
`fendants”), all women’s clothing manufacturers. These
`manufacturers created garments from that fabric and
`sold them to women’s clothing retailers 618 Main, Bur-
`lington Coat Factory Direct Corp. (“Burlington”), and
`Ashley Stewart (the “Retail Defendants”).
`
`Thus, as alleged, Manna infringed Desire’s copy-
`
`right by selling fabric bearing the Accused Design to
`the Manufacturer Defendants. The Manufacturer De-
`fendants then each allegedly committed a separate act
`of infringement in their sales to the individual Retail
`Defendants, who in turn allegedly committed acts of
`infringement in their sales to consumers. However, De-
`sire does not allege that the Manufacturer Defendants
`infringed in concert, nor that the Retail Defendants
`acted in concert to infringe Desire’s copyright.
`
`Below is a chart showing the three “chains” of in-
`
`fringement that Desire alleged here.
`
`
`
`
`
`

`

`App. 6
`
`In June 2016, Desire sued Manna, ABN, Top Fash-
`
`ion, Burlington, and Ashley Stewart, and later added
`Pride & Joys and 618 Main, alleging that all had will-
`fully infringed Desire’s copyright by manufacturing
`and/or selling fabric and garments bearing the Ac-
`cused Design.
`
`All parties moved for summary judgment. The dis-
`
`trict court partly granted Desire’s motion and denied
`defendants’ motion. The district court concluded that
`there were no triable issues of fact as to (1) Desire’s
`ownership of the Subject Design, rejecting defendants’
`arguments that the design was not original, or (2)
`whether Manna, ABN, and Top Fashion had access to
`the Subject Design. The district court also concluded
`that the Subject Design was entitled to broad copyright
`protection. The court identified triable issues of fact as
`to (1) whether the Accused Design was substantially
`similar to the Subject Design; and (2) whether defend-
`ants willfully infringed the Subject Design. The court
`also held that if Desire prevailed, it would be poten-
`tially entitled to a maximum of seven awards of statu-
`tory damages with joint and several liability imposed
`as follows:
`
`(1) Against Manna individually, for copying the
`Subject Design and distributing fabric bear-
`ing the Accused Design to the Manufacturer
`Defendants.
`
`(2) Against Manna and Top Fashion jointly and
`severally, for Top Fashion’s sale of infringing
`garments to Ashley Stewart.
`
`

`

`App. 7
`
`(3) Against Manna, Top Fashion, and Ashley
`Stewart, jointly and severally, for Ashley
`Stewart’s display and sale of infringing gar-
`ments to consumers.
`
`(4) Against Manna and ABN, jointly and sever-
`ally, for ABN’s sale of infringing garments to
`Burlington.
`
`(5) Against Manna, ABN, and Burlington, jointly
`and severally, for Burlington’s display and
`sale of infringing garments to consumers.
`
`(6) Against Manna and Pride & Joys, jointly and
`severally, for Pride & Joys’s sale of infringing
`garments to 618 Main.
`
`(7) Against Manna, Pride & Joys, and 618 Main,
`jointly and severally, for 618 Main’s display
`and sale of infringing garments to consumers.
`
`The jury returned a verdict in favor of Desire, find-
`
`ing that Manna, ABN, and Top Fashion willfully in-
`fringed the Subject Design, and that Pride & Joys
`and 618 Main innocently infringed the Subject De-
`sign.1 The jury awarded statutory damages to De-
`sire: $150,000 against Manna, $150,000 against ABN,
`$150,000 against Top Fashion, $20,000 against Pride
`& Joys, and $10,000 against 618 Main. Although the
`jury’s verdict form did not specify joint and several li-
`ability for any of its damages awards, the judgment
`read alongside the district court’s pretrial order on the
`parties’ potential liability, establishes the parties’ joint
`and several liability for each award: $150,000 against
`
`
`
`
`1 Burlington and Ashley Stewart settled before trial.
`
`

`

`App. 8
`
`Manna alone; $150,000 against ABN (jointly and sev-
`erally with Manna); $150,000 against Top Fashion
`(jointly and severally with Manna); $20,000 against
`Pride & Joys (jointly and severally with Manna); and
`$10,000 against 618 Main (jointly and severally with
`Pride & Joys and Manna). The parties do not dispute
`this.
`
` Manna, ABN, Top Fashion, Pride & Joys, and 618
`Main (“Appellants”) timely appealed.2
`
`
`II. DISCUSSION
`A. Standard of Review
`“We review the district court’s grant of summary
`
`judgment de novo.” Goodman v. Staples The Office Su-
`perstore, LLC, 644 F.3d 817, 822 (9th Cir. 2011). We re-
`view for abuse of discretion the district court’s rulings
`on motions in limine. Branch Banking & Tr. Co. v.
`D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017). We re-
`view questions of statutory interpretation de novo.
`
`2 The record reflects that 618 Main and Pride & Joys have
`
`satisfied the judgments entered against them. Payment of a judg-
`ment does not foreclose an appeal. Milicevic v. Fletcher Jones
`Imps., Ltd., 402 F.3d 912, 915 (9th Cir. 2005). An exception to that
`rule exists where “there is some contemporaneous agreement not
`to appeal, implicit in a compromise of the claim after judgment.”
`Jones v. McDaniel, 717 F.3d 1062, 1069 (9th Cir. 2013) (quoting
`Milicevic, 402 F.3d at 915). No party states that there was a con-
`temporaneous agreement not to appeal when the parties paid the
`judgments against them. 618 Main and Pride & Joys joined the
`notice of appeal filed in the district court, they have not been dis-
`missed from the appeal, and we consider them parties and subject
`to our jurisdiction.
`
`

`

`App. 9
`
`United States v. Youssef, 547 F.3d 1090, 1093 (9th Cir.
`2008) (per curiam).
`
`
`
`B. The District Court Correctly Held that
`Desire Owned a Valid Copyright.
`
`Desire must prove its ownership of a valid copy-
`right to establish copyright
`infringement. Feist
`Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340,
`361 (1991). “To qualify for copyright protection, a work
`must be original to the author.” Id. at 345. “Original, as
`the term is used in copyright, means only that the work
`was independently created by the author (as opposed
`to copied from other works), and that it possesses at
`least some minimal degree of creativity.” Id.; see 1 M.
`Nimmer & D. Nimmer, Copyright (“Nimmer”) §§ 2.01[A],
`[B] (2020). The parties do not dispute that Desire’s
`copyright registration for the Subject Design “consti-
`tute[s] prima facie evidence of the validity of the copy-
`right and of the facts stated in the certificate.” 17
`U.S.C. § 410(c). To rebut the presumption of validity,
`Appellants “must simply offer some evidence or proof
`to dispute or deny [Desire]’s prima facie case. . . .”
`United Fabrics Int’l, Inc. v. C&J Wear, Inc., 630 F.3d
`1255, 1257 (9th Cir. 2011) (citations omitted).
`
`Appellants’ challenge is based on Deborah Young’s
`
`expert report, which concluded that “[t]he flower motif/
`arrangement of Desire’s design is similar to numerous
`floral motifs found in many prior art materials in the
`public domain.” But Appellants misapprehend the ap-
`propriate standard. The “similarity” of one design to
`
`

`

`App. 10
`
`another has no bearing on whether Desire “inde-
`pendently created” the subject design. Feist, 499 U.S.
`at 345.
`
`Desire presented undisputed evidence that a
`
`Cake designer “created [the Subject Design] using
`their own imagery” in Adobe Photoshop, and used “no
`pre-existing artwork from Photoshop.” That satisfies
`the test. See id. (“Originality does not signify novelty;
`a work may be original even though it closely re-
`sembles other works so long as the similarity is for-
`tuitous, not the result of copying.”); see also Nimmer
`§ 2.01[A][2].
`
`Appellants have also failed to introduce evidence
`
`that the Subject Design lacked the necessary “modi-
`cum of creativity” to be entitled to a valid copyright.
`Feist, 499 U.S. at 346; see id. at 345 (“[T]he requisite
`level of creativity is extremely low; even a slight
`amount will suffice. The vast majority of works make
`the grade quite easily, as they possess some creative
`spark, ‘no matter how crude, humble or obvious’ it
`might be.” (quoting Nimmer § 1.08[C][1])).
`
`Thus, the district court correctly held that Desire
`
`owned a valid copyright in the Subject Design.
`
`
`
`C. The District Court Correctly Extended
`Broad Copyright Protection to the Sub-
`ject Design.
`
`The district court held that the Subject Design
`was entitled to broad copyright protection as a matter
`
`

`

`App. 11
`
`of law because the flowers and the arrangement of
`those flowers are “stylized and not lifelike,” the Subject
`Design was an original creation, and “there is ‘a wide
`range of expression’ for selecting, coordinating, and ar-
`ranging floral elements in stylized fabric designs.” We
`agree.
`
`To establish copyright infringement, Desire must
`
`show that Appellants copied the “constituent elements
`of the [Subject Design] that are original,” Feist, 499
`U.S. at 361, which requires a showing that (1) Appel-
`lants had access to the Subject Design, which is un-
`disputed, and (2) “the two works are substantially
`similar,” L.A. Printex Indus., Inc. v. Aeropostale, Inc.,
`676 F.3d 841, 846 (9th Cir. 2012), abrogated on other
`grounds as recognized by Unicolors, Inc. v. H&M
`Hennes & Mauritz, L.P., 959 F.3d 1194, 1198 (9th Cir.
`2020). Before analyzing substantial similarity, we de-
`termine whether a copyright is entitled to “thin” or
`“broad” protection. Mattel, Inc. v. MGA Entm’t, Inc., 616
`F.3d 904, 913-14 (9th Cir. 2010). The scope of protection
`depends on “the breadth of the possible expression” of
`a work’s ideas. Id. at 913.
`
`If there’s a wide range of expression . . . , then
`copyright protection is “broad” and a work will
`infringe if it’s “substantially similar” to the
`copyrighted work. If there’s only a narrow
`range of expression . . . , then copyright pro-
`tection is “thin” and a work must be “virtually
`identical” to infringe.
`
`Id. at 913-14 (citations omitted); see also Satava v.
`Lowry, 323 F.3d 805, 812 (9th Cir. 2003) (concluding
`
`

`

`App. 12
`
`that a glass-in-glass jellyfish sculpture was entitled to
`thin protection due to the narrow range of expression).
`
`In L.A. Printex, we held that the stylized floral pat-
`
`tern at issue—“a repeating pattern of bouquets of flow-
`ers and three-leaf branches”—was entitled to broad
`copyright protection “[b]ecause there is ‘a wide range
`of expression’ for selecting, coordinating, and arrang-
`ing floral elements in stylized fabric designs. . . .” 676
`F.3d at 850 (quoting Mattel, 616 F.3d at 913). “ ‘[T]here
`are gazillions of ways’ to combine petals, buds, stems,
`leaves, and colors in floral designs on fabric, in contrast
`to the limited number of ways to, for example, ‘paint a
`red bouncy ball on black canvas’ or make a lifelike
`glass-in-glass jellyfish sculpture.” Id. at 850-51 (quot-
`ing Mattel, 616 F.3d at 913-14).
`
`Under L.A. Printex, the Subject Design is entitled
`
`to broad copyright protection. Like the floral design at
`issue in L.A. Printex, the Subject Design is a stylized
`floral design. The flowers are “stylized and not lifelike,”
`and the Subject Design “depicts not flowers as they ap-
`pear in nature but an artistic combination of floral el-
`ements that is sufficiently original to merit copyright
`protection.” Id. at 850 n.4 (contrasting the stylized flo-
`ral pattern at issue to the jellyfish sculptures in Sa-
`tava). The Subject Design’s floral elements are subject
`to a wide range of expression. And as we have already
`held, Appellants failed to create a genuine issue of
`material fact on the Subject Design’s originality. See
`supra Part II.B. Thus, Desire’s “original selection, co-
`ordination, and arrangement” of floral elements in the
`
`

`

`App. 13
`
`Subject Design is entitled to broad copyright protection
`as a matter of law. See L.A. Printex, 676 F.3d at 850.
`
`Appellants argue that the scope of the Subject De-
`
`sign’s copyright protection was a question for the jury,
`but we have squarely and repeatedly held that the dis-
`trict court must determine the scope of a work’s copy-
`right protection in the first instance. See Mattel, 616
`F.3d at 915 (determining the scope of copyright pro-
`tection for a doll “sculpt” as a legal matter); Apple
`Comput., Inc. v. Microsoft Corp., 35 F.3d 1435, 1443
`(9th Cir. 1994) (“[T]he court must define the scope of
`the plaintiff ’s copyright—that is, decide whether the
`work is entitled to ‘broad’ or ‘thin’ protection.”).
`
`Appellants also argue that elements of the Subject
`
`Design that were “not original” should have been “fil-
`tered out of the analysis” for purposes of the jury’s con-
`sideration of whether the Accused Design infringed on
`Desire’s copyright. But, again, Appellants failed to
`raise a genuine issue of material fact on the question
`of the Subject Design’s originality. Appellants assert
`that their expert would have testified that the Sub-
`ject Design was “essentially copied from pre-existing
`works,” thus rendering the Subject Design “unorigi-
`nal.” Not so. Young’s proffer merely stated that the
`Subject Design is “similar to numerous floral motifs”
`found in the “public domain.” That the Subject De-
`sign may not be novel is immaterial to the question
`whether it is “original.” Desire’s uncontested evidence
`established originality, and the district court correctly
`
`

`

`App. 14
`
`afforded the Subject Design broad copyright protec-
`tion.3
`
`
`
`D. The District Court Erred in Permitting
`Multiple Awards of Statutory Damages.
`
`The district court concluded pretrial that Desire
`could obtain a separate statutory damages award
`based on each defendant’s infringements—seven pos-
`sible awards (though two defendants settled before
`trial reducing the number to five).4 The district court
`also concluded, based on the summary judgment rec-
`ord, that “upstream infringers” could be jointly and
`severally liable for the downstream infringers’ in-
`fringing conduct.5 The five statutory damages awards
`
`
`3 Because we conclude that Young’s proffered testimony did
`
`not bear on the Subject Design’s originality, we also conclude that
`the district court did not abuse its discretion in excluding those
`portions of Young’s testimony comparing the Subject Design to
`other floral designs in the public realm.
`4 The settlement, in the district court’s view, eliminated
`
`award numbers (3) and (5) listed above in Part I.
`5 The dissent, incorrectly, believes this to be a “hypothetical
`
`finding” because, it argues, “we review final judgments, not opin-
`ions or pre-trial orders.” Dissent at p. 43 (citing Jennings v. Ste-
`phens, 574 U.S. 271, 277 (2015)). But the opinion in Jennings says
`nothing about pre-trial orders, and we have repeatedly stated
`that “[a]n appeal from a final judgment draws in question all ear-
`lier, non-final orders and rulings which produced the judgment.”
`Litchfield v. Spielberg, 736 F.2d 1352, 1355 (9th Cir. 1984) (em-
`phasis added). While the dissent posits that the judgment is in-
`consistent with the order, it does not explain the supposed
`inconsistency. Further, neither party on appeal treats this order
`as hypothetical or seeks the solution proposed by the dissent.
`Both parties addressed the question in their briefs and requested
`
`
`

`

`App. 15
`
`against Manna, ABN, Top Fashion, 618 Main, and
`Pride & Joys are at issue on appeal.6
`
`Appellants contend first that the district court
`
`adopted an erroneous view of joint and several liability.
`
`
`that this court adjudicate the issue. Manna argued that the dis-
`trict court’s order “conflates the tort principle of vicarious liability
`with the much broader tort principle of joint and several liability”
`and asked the panel to reject the district court’s conclusions. De-
`sire in turn noted that if this court agrees with its view (and that
`of the district court) that upstream infringers should be liable for
`downstream infringements, it should remand for the district
`court to enter judgment consistent with this ruling. We decline to
`resolve the case on an issue raised by neither party. See United
`States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (noting
`that as a general rule parties “are responsible for advancing the
`facts and argument entitling them to relief ” (citation omitted)).
`
`The district court’s conclusion that “seven statutory damages
`awards are available with joint and several liability imposed con-
`sistent with this Order” is unequivocal. Once the jury found de-
`fendants liable and determined statutory damages, the awards
`were no longer “theoretical” and judgment was entered, con-
`sistent with the court’s order finding defendants jointly and sev-
`erally liable. Nothing in the record indicates that the district
`court modified this order prior to entering judgment. Cf. City of
`L.A., Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885
`(9th Cir. 2001) (noting that district courts may “reconsider, re-
`scind, or modify an interlocutory order for cause” provided the
`“court has jurisdiction over the case” (emphasis omitted) (citation
`omitted)). Accordingly, we part ways with the dissent: the district
`court imposed joint and several liability in its order, contingent
`on the jury’s finding of damages, and this order was “draw[n] in
`question” on appeal by the final judgment, see Litchfield, 736 F.2d
`at 1355.
`6 Under the district court’s allocation, Manna could be liable
`
`for the entire $480,000, Top Fashion for $150,000, ABN for
`$150,000, Pride & Joys for $30,000, and 618 Main for $10,000
`(though, of course, Desire could not collect more than $480,000).
`
`

`

`App. 16
`
`Rather than focusing, as the district court did, on
`whether individual defendants contributed to one an-
`other’s tortious acts, Appellants argue that joint and
`several liability attaches when two or more defendants
`contribute to the harm the plaintiff suffers, even if they
`do so independently.7 Under this approach, because
`all defendants contributed to Desire’s injuries (that
`is, the “loss of compensation resulting from the in-
`fringement”), all are jointly and severally liable with
`one another according to Appellants. And because all
`defendants are (thus) jointly and severally liable, the
`Copyright Act permits only one award of statutory
`damages.
`
`In the alternative, Appellants assert that, even if
`
`the district court correctly formulated joint and several
`liability, it was error to hold that the Copyright Act per-
`mits multiple awards of statutory damages when joint
`and several liability is not complete. We disagree with
`Appellants’ argument on joint and several liability, but
`agree with their interpretation of the Copyright Act.
`
`
`
`
`
`
`
`7 As discussed above, Pride & Joys and 618 Main, in the
`
`same distribution chain, were jointly and severally liable with
`each other for $10,000, though neither was, for example, jointly
`and severally liable with Top Fashion, which was in a different
`distribution chain.
`
`

`

`App. 17
`
`1. The district court correctly appor-
`tioned joint and several liability
`among the defendants.
`
`The district court stated, “where an upstream
`defendant causes, whether directly or indirectly, a
`downstream defendant’s infringement, the upstream
`defendant is a joint tortfeasor in, and therefore jointly
`and severally liable for, the plaintiff ’s harm caused by
`the downstream defendant’s conduct.” The district
`court also concluded that “where a downstream in-
`fringer’s conduct is not the legal cause of the upstream
`defendant’s infringement, the downstream infringer
`will not be responsible, jointly and severally, for the up-
`stream defendant’s wrongdoing.” The district court’s
`conclusions were correct.
`
`“If the independent tortious conduct of two or
`
`more persons is a legal cause of an indivisible injury,”
`joint and several liability may apply. Restatement
`(Third) of Torts: Apportionment Liab. § 17 (2000). “The
`requirement is only that the independent tortious acts
`‘concur’ to cause an injury that is not divisible based
`on the causal contribution of the tortfeasors.” Id. § A18
`cmt. b. A divisible injury is one for which “[d]amages
`can be divided by causation.” Id. § 26(b). To determine
`whether an injury is divisible, the factfinder must de-
`termine whether “the evidence provides a reasonable
`basis” to determine “that any legally culpable conduct
`of a party . . . was a legal cause of less than the entire
`damages for which the plaintiff seeks recovery” and
`“the amount of damages separately caused by that con-
`duct.” Id. “When two or more persons have joined in or
`
`

`

`App. 18
`
`contributed to a single infringement of a single copy-
`right, each is jointly and severally liable; [and in such]
`circumstances, in a single infringement action. . . .”
`Nimmer § 14.04[E][2][d][i] (footnote omitted); see, e.g.,
`Adobe Sys. Inc. v. Blue Source Grp., Inc., 125 F. Supp.
`3d 945, 973 (N.D. Cal. 2015).
`
`Appellants argue that all defendants are jointly
`
`and severally liable for all infringements in the action
`because all the downstream infringers contributed to
`Desire’s injuries in the form of the compensation De-
`sire otherwise would have recouped from the use of its
`copyrighted design. Thus, Appellants contend that De-
`sire suffered one indivisible injury for all the infringe-
`ments flowing from Manna’s source infringement, and
`that each defendant is jointly and severally liable for
`all infringements, regardless of whether an infringe-
`ment occurred in a defendant’s independent chain of
`distribution. We disagree.
`
`Appellants’ formulation of joint and several lia-
`
`bility rests on a flawed understanding of the injury
`that stems from copyright infringement. In Appel-
`lants’ view, each separate act of downstream infringe-
`ment contributed to a single indivisible injury: the loss
`of compensation that Desire would have otherwise re-
`alized from the use of its copyrighted design. But we
`have recognized that the “rewards” that Congress in-
`tended to secure for the owner of a copyright “need not
`be limited to monetary rewards.” Worldwide Church of
`God v. Phila. Church of God, Inc., 227 F.3d 1110, 1119
`(9th Cir. 2000). Indeed, “[t]he copyright law does not
`require a copyright owner to charge a fee for the use of
`
`

`

`App. 19
`
`his works. . . . It is not the role of the courts to tell cop-
`yright holders the best way for them to exploit their
`copyrights. . . .” Sony Corp. of Am. v. Universal City
`Studios, Inc., 464 U.S. 417, 446 n.28 (1984).
`
`Thus, we think that a view of “harm” or “injury”
`
`cabined only to Desire’s loss of compensation is incon-
`sistent with the Copyright Act. Rather, we think cor-
`rect the district court’s formulation of joint and several
`liability, which considers which defendants were re-
`sponsible for which acts of infringement.
`
`Desire’s damages were divisible. Each upstream
`
`infringer was a “but for” cause of all downstream in-
`fringements in its chain of distribution, because absent
`the upstream infringer’s distribution, no downstream
`infringer would have received any infringing item.
`Since the district court could determine which group of
`defendants legally caused each set of infringements, it
`divided the infringements into seven sets: (1) Manna’s
`distribution to Pride & Joys, ABN, and Top Fashion
`(only Manna liable); (2) Top Fashion’s sale to Ashley
`Stewart (Manna and Top Fashion jointly and severally
`liable); (3) Ashley Stewart’s display and sale to con-
`sumers (Manna, Top Fashion, and Ashley Stewart
`jointly and severally liable); (4) ABN’s sale to Burling-
`ton (Manna and ABN jointly and severally liable);
`(5) Burlington’s display and sales to consumers
`(Manna, ABN, and Burlington jointly and severally li-
`able); (6) Pride & Joys’s sale to 618 Main (Manna and
`Pride & Joys jointly and severally liable); and (7) 618
`Main’s display and sales to consumers (Manna, Pride
`& Joys, and 618 Main jointly and severally liable).
`
`

`

`App. 20
`
`Here, there was no evidence any downstream in-
`
`fringer was the “but for” cause of any upstream in-
`fringement in the other chains of distribution, or, in the
`case of the Retail Defendants, the “but for” cause of
`Manna’s sale to any Manufacturer Defendant.8 The
`district court properly found on summary judgment
`that while some defendants could be jointly and sever-
`ally liable with some other defendants, not all defend-
`ants could be jointly and severally liable with all other
`defendants.9
`
`This conclusion does not end our inquiry. Though
`
`we agree that the district court correctly determined
`joint and several liability, we hold the district court
`erred in awarding Desire multiple statutory damages
`awards totaling $480,000.
`
`
`
`
`8 In a case like this, where one purchases infringing goods
`
`with knowledge of the goods’ infringing character, a court could
`find the purchaser was a legal cause of the infringing act of dis-
`tribution and contributorily liable for it. See Ellison v. Robertson,
`357 F.3d 1072, 1076 (9th Cir. 2004) (“One who, with knowledge of
`the infringing activity, induces . . . infringing conduct of another
`may be liable as a contributory copyright infringer.” (alterations,
`internal quotation marks, and citation omitted)).
`
`That said, it does not appear that Desire ever pursued a the-
`ory of contributory infringement based on the purchase of articles
`bearing the infringing design. And even if Desire had done so, it
`would not alter our conclusion that joint and several liability is
`incomplete, as there is no evidence that any purchaser contrib-
`uted to acts of infringement in other chains of distribution.
`9 For example, 618 Main was not a “but for” cause of Manna’s
`
`distribution to Top Fashion. Thus, 618 Main was not jointly and
`severally liable with Top Fashion.
`
`

`

`App. 21
`
`2. The Copyright Act permits only one
`award of statutory damages here.
`
`The Copyright Act permits a copyright owner to
`elect an award of statutory damages in lieu of actual
`damages and profits. 17 U.S.C. § 504(c)(1) (“Section
`504(c)(1)”). Section 504(c)(1) permits an owner to re-
`cover “an award of statutory damages for all infringe-
`ments involved in the action, with respect to any one
`work, for which any one infringer is liable individually,
`or for which any two or more infringers are liable
`jointly and severally.” Id. Section 504(c)(1) limits stat-
`utory damages awards to $150,000 for willful infringe-
`ment and $30,000 for innocent infringement. Id.
`§ 504(c)(1), (2). “The number of awards available under
`this provision depends not on the number of separate
`infringements, but rather on (1) the number of individ-
`ual ‘works’ infringed and (2) the number of separate
`infringers.” Friedman v. Live Nation Merch., Inc., 833
`F.3d 1180, 1189-90 (9th Cir. 2016). There is no dispute
`that Appellants infringed one work, the Subject De-
`sign. The pertinent question, then, is whether the Act
`authorized the district court to issue multiple statu-
`tory damages awards where one infringer is jointly and
`severally liable with all other infringers, but the other
`infringers are not completely jointly and severally lia-
`ble with one another. The answer is no.
`
`
`
`
`
`
`

`

`App. 22
`
`a. The text of Section 504(c)(1) lim-
`its Desire to one award of statu-
`tory damages.
`
`As in all statutory interpretation, “our inquiry be-
`gins with the statutory text, and ends there as well if
`the text is unambiguous.” BedRoc Ltd., LLC v. United
`States, 541 U.S. 176, 183 (2004). “[W]hen the statutory
`language is unambiguous, the plain meaning controls.”
`Afewerki v. Anaya Law Grp., 868 F.3d 771, 778 (9th
`Cir. 2017) (internal quotation marks and citation
`omitted). We conc