Exhibit Q to the Complaint, Sullivan v. Flora, Inc., No. 15-cv-00298 (W.D. Wisc. 2015), ECF No. 1-17.
What counts as one work for copyright purposes? The answer can have a significant impact on the magnitude of an infringement damages award - so significant that the litigants in Sullivan v. Flora, Inc. have twice asked the Seventh Circuit to weigh in on the question.
The dispute arose out of Flora, Inc.'s willful infringement of 33 copyrighted illustrations that it had commissioned from artist Amy Sullivan and then used outside the scope of the parties' license agreement. Sullivan registered her images with the U.S. Copyright Office as two sets of "illustration collections," and the parties' disagreement centers on whether she is entitled to statutory damages on a per-image, rather than per-compilation, basis.
On March 31, 2023, the Seventh Circuit affirmed in part and reversed in part a decision of the District Court for the Western District of Wisconsin, remanding the proceedings for trial on the issue of whether the individual illustrations held "independent economic value" so as to justify a per-image calculation.
Background & Proceedings Below
Flora is a manufacturer of herbal supplements and health products. In 2013, Flora retained Joseph Silver to produce animated graphic advertisements for two of its products, 7 Sources and Flor-Essence. Silver subcontracted with Amy Sullivan to create illustrations for the ads. Sullivan created 33 images, and Silver animated the images to produce two motion graphics. Sullivan granted Flora an exclusive license to use the illustrations for the 7 Sources and Flor-Essence ad campaigns.
Soon thereafter, Sullivan discovered that Flora was using the illustrations...
