Roxana Towry Russell v. Walmart Inc., et al.

Petitioner Roxana Towry Russell is an artist who designs sculptural lamps. She owns copyrights in both the lamps and photographs of the lamps. A jury found Walmart infringed Russell’s copyrights by selling knockoff lamps on its website. Walmart’s product listings used Russell’s copyrighted photographs and declared the infringing lamps were “Sold & shipped by Walmart.” Walmart did not appeal the district court’s denial of its motion for judgment as a matter of law (JMOL) under Federal Rule of Civil Procedure 50(b). It appealed only from the earlier judgment entered on the verdict. The Ninth Circuit recognized that, as a result, the denial of the Rule 50(b) motion was not before it on appeal. The Ninth Circuit nonetheless held it could review the sufficiency of the evidence by reviewing the denial of Walmart’s pre-verdict motion for JMOL under Rule 50(a). It then held, over a dissent, that there was insufficient evidence to hold Walmart liable for infringing Russell’s copyrights in the photographs used in Walmart’s product listings, even on a secondary-liability theory, because the photographs allegedly were uploaded by a contractor. The questions presented are:

1. Whether a court of appeals may assess the sufficiency of the evidence supporting a jury verdict by reviewing the denial of a Rule 50(a) motion.

2. Whether the Court should hold this petition pending Cox Communications Inc. v. Sony Music Entertainment, No. 24-171—which concerns the proper standard for secondary liability for copyright infringement—and then dispose of this petition as appropriate following its decision in Cox. (i)