IP Law Daily, COPYRIGHT NEWS—Lamp designer asks Supreme Court to hear appeal in Walmart copyright case, (Mar 30, 2026)

By Steven Melendez

The designer says the Ninth Circuit should not have heard Walmart’s appeal of a pre-verdict motion where it partially overturned a copyright infringement judgment.

Lamp designer Russell filed a petition for writ of certiorari, urging the U.S. Supreme Court to overturn a Ninth Circuit ruling that partially overturned a jury verdict for Russell in a copyright case against Walmart. The Ninth Circuit issued the ruling on appeal of a pre-verdict motion for judgment as a matter of law (JMOL) under Federal Rule of Civil Procedure 50(a), which Russell argued conflicts with existing precedent, including a Supreme Court ruling (Russell v. Walmart Inc., Dkt. No. 25-1111 (U.S. filed Mar. 19, 2026)).

Lamps. Russell designs, manufactures, and sells innovative pendant lamps resembling jellyfish under the name Roxy Russell Design. Her lamps have been featured in a variety of magazines and TV shows and typically sell at prices from $375 to $475, according to court filings. In 2019, after spotting what she considered knockoffs of her lamps on the Walmart website, she filed suit against Walmart in the federal court in Los Angeles, alleging copyright infringement, Lanham Act violations, and unfair competition. The allegedly infringing lamps were sold on the Walmart site by a third-party vendor, listed as “Jellyfish Lampshades.”

Litigation. A jury trial was held in February 2023, where the jury found Walmart liable for direct or indirect infringement for three lamps and two of Russell’s photographs used without permission in the listing and found that Walmart was not entitled to safe harbor as an online service provider under the Digital Millennium Copyright Act (DMCA). The jury awarded Russell actual damages of $22,000 and $5,000 of Walmart’s profits. It also awarded Russell statutory damages of $15,000 for each infringed work, for a total of $75,000, and a district court judgment noted that Russell elected to take the statutory damages rather than the actual damages and profits. Walmart was not found liable for false advertising or unfair competition.

The court denied Walmart’s renewed motion for judgment as a matter of law following the verdict, finding there was sufficient evidence for the jury’s verdict, and that Walmart failed to prove it was entitled to the DMCA defense. Russell also was granted $1,486,199.25 in fees and $28,703.56 in costs.

Ninth Circuit. On appeal to the Ninth Circuit, Walmart argued that it merely provided a website where the third-party vendor sold the lamps, but the court noted that the website did not provide the vendor’s name and indicated the lamps were sold by Walmart. Buyers also pay Walmart, the court noted, which also handles returns, legally assumes title when the merchandise is given to a shipping carrier, and provides a shipping account for the vendor’s use. The court found a jury could reasonably conclude that Walmart was the actual seller.

But regarding the photos, the court found there was not enough evidence of direct infringement, with Walmart not selecting the photos or monitoring the vendor’s listings. Nor, the court found, was there sufficient evidence of secondary infringement. Circuit Judge Roopali Desai, in a partial dissent, said she would affirm the ruling with regard to the photos as well, saying Russell presented evidence Walmart posted and exercised control over the listing containing them. The court also vacated the order on costs and fees and ordered reconsideration in light of Russell’s partial success in the case (See Walmart liable for infringing sculptural lamps, but not product photos, (Jun. 20, 2025)).

Petition. In her petition for writ of certiorari, Russell noted that Walmart appealed only the denial of the pre-verdict motion for JMOL under Rule 50(a), and not the post-verdict motion filed under Rule 50(b), and the Ninth Circuit agreed the Rule 50(b) motion was not before it. But the court still reviewed the sufficiency of the evidence in the case.

That, Russell argues, conflicts with precedent from every other appellate circuit—and the Supreme Court’s own ruling in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. There, she argued, the court found that denial of a Rule 50(a) motion is not appealable error, because courts have the discretion to let a jury hear evidence first. That conflict, and the disagreement with other circuit courts, justify hearing the case, or summarily reversing the ruling, Russell argued.

“Rules of procedure—particularly those concerning when jury verdicts may be disturbed—should not vary by geography,” according to the petition. “The decision below short-circuits the careful, precise process the Rules establish for sufficiency-of-the-evidence challenges. That decision threatens to distort review of jury verdicts in our Nation’s largest circuit.”

When notices of appeal are filed before Rule 50(b) motions are resolved, parties must explicitly file an amended notice of appeal to challenge those rulings as well, which was not done in this case, Russel argued. Still, she said, the Ninth Circuit denied rehearing of the matter en banc to address the conflict and declined to publish its decision, in which she argued it effectively promulgated a “new rule.”

“By reviewing the sufficiency of the evidence based solely on the district court’s denial of Walmart’s Rule 50(a) motion, the Ninth Circuit did precisely what Unitherm forbids—and what no other circuit would tolerate,” according to the petition. “Review is warranted to resolve that circuit conflict and correct the Ninth Circuit’s departure from this Court’s precedent. Indeed, the Ninth Circuit’s error is so stark that the Court may wish to consider summary reversal.”

In the alternative, Russell argued, the court could consider holding the petition pending a ruling in Cox Communications Inc. v. Sony Music Entertainment, another matter before the court dealing with secondary copyright-infringement liability, although that case has since been decided by the Supreme Court, on March 25, 2026.

The Case is Dkt. No. 25-1111.

Attorneys: Guy Ruttenberg and Bruce D. Kuyper (Ruttenberg IP Law, APC) for Roxana Towry Russell.

Companies: Walmart Inc.; Wal-Mart.com USA, LLC

News: Copyright TechnologyInternet ArizonaNews CaliforniaNews HawaiiNews IdahoNews MontanaNews NevadaNews OregonNews WashingtonNews