Gene Brockland recently won a significant victory for his client, sculptor Don Wakefield, in a major copyright infringement case. Billionaire Igor Olenicoff and his Olen Properties Corporation were originally hit with a $450,000 verdict. The 9th Circuit Court of Appeals has now upheld the damage award, and has ordered that the infringing copies be destroyed.
Wakefield has been a sculptor for decades, working primarily in granite. In 1992 he and another artist created an 8 foot tall black granite sculpture called Untitled. After months of work and following completion of the sculpture, Untitled was shipped to Chicago where it has been prominently displayed in the front yard of a private collector ever since.
Nearly twenty years after creating Untitled, Wakefield happened upon several nearly identical copies of Untitled and several modified copies, all publicly displayed at different Olen locations in southern California, including Olen's headquarters in Newport Beach, office towers known as Century Centre in Irvine, and a mixed-use development known as Olen Pointe - Brea.
Wakefield filed suit under the Copyright Act, seeking damages and an injunction against further infringement. At trial, Wakefield testified that he had contacted Olen in 2004 in an unsuccessful attempt to solicit business, and that Untitled had been featured in photographs on his website over the years. Olenicoff and Olen Properties defended the case, in part, by claiming that they had never heard of Wakefield before innocently happening upon the copies in China, where they purchased them for a fraction of what Wakefield would have charged. The jury found for Wakefield on all issues, awarding him damages of $450,000. Judge Andrew Guilford vacated the jury award, finding the damage evidence insufficient, but ordered Olenicoff to destroy the knockoffs. Wakefield appealed, seeking to have the jury award reinstated. The 9th Circuit found for Wakefield, approving of the damage award and ordering that the copies be destroyed.
Wakefield, after working in southern California for many years, returned to his hometown of Detroit where he is the President and Creative Director of the Great Lakes Art Center in Garden City, Michigan. He stated, "This is a great day for artists' rights and a bad day for a billionaire who wouldn't pay a fair price for original art."
Following are photographs of the original sculpture (Untitled) at its current location and three of the infringing copies (Human Nature's Many Faces) found in California.