Weekend Warrior Clothing, LLC v. Amazon.com Services, LLC et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
WEEKEND WARRIOR CLOTHING,
LLC,
Plaintiff,
v.
AMAZON.COM SERVICES, LLC, et
al.,
Defendants.
Case No. 1:23-cv-752
JUDGE DOUGLAS R. COLE
OPINION AND ORDER
This is a copyright infringement action. Defendants Amazon.com Services,
LLC, and Amazon.com, Inc. (collectively Amazon), operate a service called Merch on
Demand. The service allows third-party creators to upload designs to Amazon’s
website. Amazon then generates and displays images of those designs applied to
various stock products (e.g., t-shirts), lists them for sale at a price it chooses, and
identifies itself as the seller. Potential customers are free to browse through those
listings. Then, if someone places an order, Amazon collects payment, manufactures
the products, delivers them, and pays a “royalty” to the content creator.
Plaintiff Weekend Warrior Clothing, LLC, by contrast, designs and sells its
own humorous apparel online—but not through the Amazon website. Weekend
Warrior claims that third-party users are uploading its copyrighted designs onto
Amazon’s Merch on Demand service, resulting in the display, manufacture, and sale
of infringing products. Rather than target the individual third-party creators, though,
Weekend Warrior went hunting for bigger game. It sued Amazon itself for direct,
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contributory, and vicarious copyright infringement, both for the images displayed on
the website and the products Amazon sold. (Am. Compl., Doc. 17, #132–35).
The parties now cross-move for summary judgment on infringement, with
Amazon also moving for partial summary judgment on five other issues. (Docs. 66,
68). Starting with Weekend Warrior’s motion, the Court finds a genuine dispute of
material fact over the validity of Weekend Warrior’s asserted copyrights, and thus
the Court DENIES Weekend Warrior’s Motion for Summary Judgment. (Doc. 66).
Turning to Amazon’s motion, the Court concludes that, if Weekend Warrior has one
or more valid copyrights, then Amazon could be liable as a direct or vicarious infringer
(but not as a contributory infringer). So the Court DENIES Amazon summary
judgment on direct and vicarious infringement, but GRANTS Amazon summary
judgment on contributory infringement. The Court also DENIES Amazon partial
summary judgment on the five additional issues it raised except for its specific
defense 	to 	the 	Ameri-CAN 	v2 	and 	Down 	Goes 	Liver 	copyrights. 	The 	Court
DISMISSES without prejudice Weekend Warrior’s claims involving those specific
copyrights.
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BACKGROUND1
A. 	Weekend Warrior.
In 2018, Tim and Daniel Whelan,2 two brothers, started Weekend Warrior to
sell apparel with “designs centered around holidays, American drinking culture, and
patriotism, using outlandish and crude humor.” (Def.’s Resp. to Pl.’s Proposed
Undisputed Facts, Doc. 86-1, #10917, 10919). While Weekend Warrior Clothing, LLC,
is the formal company title, they sell merchandise under the brand name USA
Drinking Team through the website officialusadrinkingteam.com. (Id. at #10917). 3
Daniel creates Weekend Warrior’s designs and is the stated author on each
copyright registration. (Pl.’s Resp. to Def.’s Proposed Undisputed Facts, Doc. 84-2,
#10601; Doc. 86-1, #10918). Daniel “draw[s] inspiration” from “reference images”
across the internet, (Doc. 84-2, #10602), including “various ideas, memes, movies,
games, products, characters, themes, and events,” (Doc. 86-1, #10918). Daniel,
however, does not have any records of these reference images and did not obtain
licenses 	or 	any 	form 	of 	permission 	from 	those 	creators. 	(Doc. 	84-2, 	#10602).
Conversely, Weekend Warrior has never licensed any of its copyrighted designs to
any third party. (Doc. 86-1, #10920).
1 Pursuant to the Court’s Civil Standing Order (I)(F)(2)(a)–(c), Weekend Warrior and Amazon
simultaneously filed a list of Proposed Undisputed Facts, (Docs. 66-1, 73-1), with their
motions. Each party admitted to many of the other’s proposed facts. (Docs. 84-2, 86-1). Unless
otherwise noted, the Court cites those documents only for admitted facts.
2 Because the brothers share a last name, the Court will refer to them individually by their
first names.
3 The website does not reference Weekend Warrior or the Whelan brothers. (Doc. 84-2,
#10591). The parties generally dispute whether any other publicly available materials
connect Weekend Warrior and Official USA Drinking Team. (Id. at #10591–92).
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Weekend Warrior has forty-eight copyright registrations relevant here. (Doc.
17, #123–25). 4 It also had two copyright registrations pending when it filed the
Amended Complaint: Happy St. PatRizz Day and King of the Kill. (Id. at #125). While
Weekend Warrior obtained registrations for each of these fifty designs, Amazon
contests whether they are valid copyrights. See infra Parts A.1 & A.2.
B. 	Merch on Demand.
1. 	General Operations.
Now turn to Amazon. As everyone knows, it maintains an online marketplace
for a wide range of products. Most relevant here, Amazon operates a service called
“Amazon Merch on Demand.” Amazon created the service to “help[] individuals, small
businesses, and entrepreneurs … produce merchandise that might otherwise be too
expensive.” (Doc. 84-2, #10574–75). To that end, Amazon provides approximately
fourteen blank products, such as t-shirts or tote bags, each of which comes in a variety
of colors. (Id.; Doc. 86-1, #10912). Third-party “Content Creators” upload their own
designs to Merch on Demand and then select on which blank product they would like
4 Those copyrights, in the order provided by Weekend Warrior, are: (1) Tits McGee Irish Pub;
(2) Leprechaun Griddy, (3) Bad Day to Be a Cerveza, (4) Pat McCrotch Irish Pub, (5) Griddy
Taco, (6) Griddy Cerveza, (7) Bad Day to Be a Beer – America Edition, (8) Uncle Sam’s
American 	Lager, (9) USA 	Drinking Team 	Mascot, 	(10) Real American 	– Uncle Sam,
(11) Ameri-CAN Eagle, (12) Meri-CAN Eagle, (13) Uncle Sam Griddy, (14) USA Jam – Uncle
Sam/Merican Eagle, (15) USA Jam – Washington/Lincoln, (16) Ameri-CAN V2, (17) Bald
Eagle Griddy, (18) Ameri-CAW, (19) Bad Day to Be a Beer, (20) Bad Day to Be a Beer –
Christmas Edition, (21) Bad Day to Be a Bier, (22) Bad Day to Be a Turkey, (23) Boo Bees and
Beer, (24) Can’t Get Hungover, (25) Do You Feel Lucky, (26) Enjoy Beer, (27) Fantasy Football
Legend, (28) FrankenSTEIN, (29) Get Smashed, (30) Greened Out, (31) Hope They Serve Beer
in Hell, (32) I Want Brew, (33) Make Mullets Great Again, (34) Most Interesting Pumpkin,
(35) Poor Day to Be a Pilsner, (36) Protect the Charms, (37) Skeleton Griddy, (38) The Grim
Rizzer, (39) Where the Horrors At?, (40) Morning Wood Lumber, (41) Papa Woody Plumbing,
(42) Master Bait, (43) Shut Up Liver, (44) Enjoy Beer – Ugly Sweater, (45) Camel Tow,
(46) Thicc Santa, (47) Merry Rizz-Mas, and (48) Santa Griddy. (Doc. 17, #123–25).
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the design to be printed. (Doc. 84-2, #10574–75).5 From there, the Content Creator’s
design is “virtually rendered” onto the product. (Id. at #10577; see Doc. 60-5 (example
of virtual renderings)).6 Next, the Content Creator provides the product’s name,
description, 	and 	recommended 	price. 	(Doc. 	84-2, 	#10577). 	Merch 	on 	Demand
automatically creates a public listing page for the final product. (Id. at #10578).
At that point, Amazon takes over the remaining vendor tasks. For example,
Amazon manufactures the designed product. But it does so only in response to
customer orders, thereby obviating the need for any inventory. (Id. at #10575). More
broadly, though, Amazon also “has sole discretion to determine price, availability,
distribution channels, and terms of sale.” (Id. at #10577). It also handles “processing
payments, collecting payments, addressing requests for refunds, and providing
customer service.” (Id.). And Amazon labels itself as the seller of record. (Id.).
In terms of distributing sales proceeds, Amazon pays Content Creators a
royalty “based on the sales price minus production and fulfillment costs, which are
set by a standardized schedule.” (Id. at #10580; Doc. 55-9 (examples of standard
royalties)). For example, if Amazon sells a standard t-shirt in the United States for
$19.99, it will pay the Content Creator $4.89. (Doc. 55-9, #2382). If a customer returns
the item, however, the Content Creator receives nothing. (Doc. 86-1, #10916).
5 Amazon also offers a “Merch Collab” option whereby Amazon licenses “certain third-party
content from known brands and celebrities” that Content Creators can use for their designs.
(Doc. 84-2, #10575).
6 The parties dispute whether the virtual renderings are created before or after the
moderation process described below. (Doc. 84-2, #10577–78).
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2. 	Screening.
a. 	Content Creator Account.
With that general process in mind, the Court takes a few steps back to cover
the process Amazon uses to screen providers for the Merch on Demand program. To
become a Content Creator, a user must apply for an account. (Id. at #10910). To do
so, the user must submit a “business name, address, phone number, bank details for
royalty payments, and complete a tax interview, which requires input of a Social
Security 	number 	or 	Tax 	ID 	number.” 	(Id.). 	From 	there, 	Amazon 	will 	reject
applications if the user either has 	, if Amazon
, or if the provided details
or Merch on Demand’s purpose. (Id. at #10910–11/sealed Doc. 85-
1, #10754–55). This process involves automated and human levels of review, and so
can take several days. (Doc. 86-1, #10911/sealed Doc. 85-1, #10755). If the user’s
application passes these steps, Amazon allows the user to have a Content Creator
account.
Once a Content Creator has an account, they must also agree to the Merch
Services Agreement. (Doc. 84-2, #10581–82). Under that agreement, Amazon retains
the right to terminate Content Creator accounts, with or without notice, for violations
of the included policies. (Doc. 86-1, #10911; see Doc. 55-8 (agreement)). As relevant
here, a Content Creator specifically agrees not to use “illegal or infringing content,”
defined 	as 	“[c]ontent 	incorporating 	intellectual 	property 	(such 	as 	trademarks,
copyrights, or the name or likeness of others) that [they] do not have the right to use.”
(Doc. 84-2, #10582). Over time, Amazon collects “risk signals” to determine whether
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it should review a Content Creator’s account for potential termination. (Id.; Kraft
Dep., Doc. 76-7, #8976/sealed Doc. 74-7, #7778). There is no set number of risk signals
that 	guarantees 	termination, 	but 	these 	signals 	include 	an 	approved
, connection to a
, and any “ 	.” (Doc. 76-7, #8976/sealed Doc. 74-7, #7778).
b. 	Specific Product Listing.
Amazon also deploys screening tools for each specific design an approved
Content Creator uploads. During that review process, Amazon deploys some kind of
automated technology that flags potential policy violations arising from the design.
Any flagged designs are then passed on to human reviewers. (Doc. 76-7, #8910–
13/sealed Doc. 74-7, #7711–15). Approximately 	employees conduct this review
for potential policy violations. (Doc. 76-7, #8910/sealed Doc. 74-7, #7712).
Policy violations can include, for example, designs containing hate speech,
designs that mention a charity, or as relevant here, designs that include “duplicate
content.” (Doc. 76-7, #8913/sealed Doc. 74-7, #7715; see Doc. 83-2, #10435 (content
policies)). One way Amazon determines whether a design constitutes “duplicate
content” is by comparing the design to its image database. (Doc. 76-7, #8913–14;
Snyder Dep., Doc. 76-8, #9077/sealed Doc. 74-8, #7879). When Amazon is “made
aware of content that a rights owner has rights to,” that image will be added to the
database for future monitoring. (Doc. 76-7, #8914/sealed Doc. 74-7, #7716). After that,
if a Content Creator uploads a similar design, Amazon’s automated technology flags
the potential duplicate. (Doc. 84-2, #10583–84).
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Generally, Amazon claims that its “quality and compliance content review
includes review of content delivered by a content creator to Amazon relating to a
product, including product information, media, art, logos, trademarks, trade names,
models, design specifications, product instructions and notices, and other similar
materials.” (Doc. 86-1, #10913). To be clear, though, Amazon does not alter the
proposed design; it either approves it as uploaded or rejects the listing in its entirety.
That 	said, 	Amazon’s 	default 	position 	is 	to 	approve 	designs—“[i]f 	Amazon’s
moderation system finds no flags indicating any policy violation, a product listing will
go live for viewing and purchase.” (Doc. 84-2, #10584).
This moderation process leads Amazon to block over 25,000 Merch on Demand
designs each month due to policy violations. (Id.). Considering that users add over
new designs every month, (id./sealed Doc. 72-1, #7053), Amazon blocks
approximately 	of new designs.
Moreover, even once a product is listed, Amazon can still take that product
listing down. On that front, “Amazon conducts ongoing audits and inspections using
machine learning and text-based and image-based automated detection tools to flag
allegedly infringing content, including potential matches to reference images in
Amazon’s similarity database, and words and phrases that violate its Merch on
Demand policies.” (Doc. 84-2, #10584–85). Most relevant here, Amazon can remove
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product listings and terminate Content Creators if it receives a third-party “takedown
request.” (Doc. 84-2, #10581). 7
c. 	Notice of Claimed Infringement.
Because the takedown requests, and the processes Amazon uses to review
them, are critical to Weekend Warrior’s claim, the Court offers some further detail.
Third-party rights holders can submit Notices of Claimed Infringement (NOCIs) that
are meant to alert Amazon of alleged intellectual property infringement. (Doc. 84-2,
#10585). There are several ways to submit such NOCIs. First, the purported rights
holder can email Amazon at a specified address: copyright@amazon.com. (Id.).
Second, “Amazon account holders can use Amazon’s Report Infringement Tool … to
report different types of alleged intellectual property infringement, including alleged
copyright infringement, through a series of drop-down menus, that prompt users to
identify [Digital Millenium Copyright Act (DMCA)]-notice-complaint details of the
alleged infringement, including [the] Amazon product number … for the allegedly
infringing product or product listing.” (Id. at #10585–86). Third, users can physically
mail complaints to Amazon’s legal department. (Id. at #10856). 8
7 Weekend Warrior does not dispute the availability of this process generally, but it does
dispute that Amazon consistently acts based on submitted takedown requests. (Doc. 84-2,
#10581). Instead, it contends that “Amazon failed to terminate numerous and blatant repeat
infringers of the [Weekend Warrior] [d]esigns in this case.” (Id. at #10583).
8 Amazon also has a free service called Brand Registry “that offers rightsholders an enhanced
suite of tools for monitoring and reporting potential instances of infringement, regardless of
their relationship with Amazon.” (Doc. 84-2, #10856). That service, however, helps only users
with registered trademarks and specifically does not include copyright claims. (Bundy Dep.,
Doc. 76-6, #8841/sealed Doc. 74-6, #7643). Weekend Warrior does not own any registered
trademarks, only copyrights, so this service is irrelevant here. (Doc. 84-2, #10586).
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Amazon receives a high quantity of NOCIs each year. In 2022, for example, it
received approximately 	notices. (Id. at #10587). Amazon estimates
of these are fraudulent (which Weekend Warrior disputes). (Doc. 84-2,
#10579, 	10587–88). 	This 	potential 	for 	fraudulent 	reporting 	creates 	concerns.
According to Amazon’s expert, “[t]he potential for abuse is significant … Sellers or
content creators may file fraudulent or exaggerated takedown notices against
competitors to remove popular products, disrupt business operations, or unfairly
dominate search results.” (LaMagna Rep. Doc. 76-13, #9540).
To determine which NOCIs are legitimate, Amazon has a bevy of detection
systems 	that 	include 	both 	automated 	machine 	learning 	processes 	and 	human
reviewers. (Doc. 84-2, #10589). Start with an email NOCI. If a purported rights holder
emails 	Amazon’s 	copyright 	email 	address, 	Amazon 	will 	attempt 	to 	verify 	the
purported rights holder’s email account, including requiring the user to provide a
verification code. (Doc. 84-2, #10588). In particular, Amazon claims it “scrutinizes
NOCIs 	”
because 	Amazon 	cannot 	immediately 	verify 	a 	connection 	between 	the 	person
submitting the complaint and the actual rights holder. (Id.).9 From there, a human
reviewer will “ 	” in an effort to find a verifiable
connection between the submitter and the disputed intellectual property. (Doc. 84-2,
9 Weekend Warrior disputes that these accounts pose more of a challenge, particularly given
that Amazon could not verify its own email address when Tim Whelan submitted complaints.
(Doc. 84-2, #10589).
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#10589). Amazon employs approximately 	investigators to review NOCIs from
both email and the Report Infringement Tool. (Doc. 84-2, #10589–90).
At that point, if Amazon determines the NOCI was fraudulent, it will put the
submitter’s email address on a “blocklist.” (Doc. 84-2, #10589). Once that occurs,
Amazon will automatically reject all future NOCIs from that email address, without
any further review. (Doc. 84-2, #10589). But Amazon
, the consequences of 	, or why Amazon deemed
. (Id.).
Beyond that, the NOCI must adequately identify the intellectual property
right allegedly at issue and the allegedly infringing content. (Id. at #10590). If
Amazon concludes the NOCI is valid, Amazon will remove the infringing content and
notify the “relevant party.” (Id.). As mentioned above, once a NOCI is verified, an
image of the intellectual property goes into Amazon’s database for future reference
checks. (Id. at #10591).
C. 	Weekend Warrior’s Infringement Notifications to Amazon.
Now to the basis of this specific lawsuit. Weekend Warrior contends that
Content Creators have been uploading its copyrighted designs onto merchandise
through Amazon’s Merch on Demand portal. Overall, Weekend Warrior has 48
copyrighted works at issue, the “Asserted Copyrights.” Additionally, it claims there
are approximately 560 listed products that infringe its copyrights, which it calls the
“Accused Listings.” (Doc. 84-2, #10599). Not all of the Accused Listings, though, have
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accompanying sales. (Id.). But, as to those sales, Weekend Warrior contends that the
display of the product (with the included design) itself constitutes infringement.
Starting in 2021, Weekend Warrior notified Amazon of the alleged copyright
infringements. (Doc. 84-2, #10592; Doc. 86-1, #10920; sealed Ex. 24a (spreadsheet)).
Specifically, on May 5, 2021, Tim submitted a NOCI via email. (Doc. 86-1, #10921).
Tim sent the email from support@officialusadrinkingteam.com, stated “I am the
owner of officialusadrinkingteam.com” and signed it “Official USA Support Team.”
(Doc. 64-7, #6762). The email contained links to five Amazon listings allegedly
stealing Official USA Drinking Team’s design, and included a link to Official USA
Drinking Team’s similar product, its Statute of Libeerty jersey. (Id.). The email did
not reference the Whelans or Weekend Warrior, though. (Id.).
Within minutes, Amazon rejected the NOCI as “incomplete.” (Doc. 86-1,
#10923). It also requested more information: “(1) name and email address of the
person submitting the notice and any additional contact details; (2) rights owner
name if the notice is submitted by an agent of the rights owner; (3) physical or
electronic signature; (4) description of the copyrighted work claimed to be infringed;
(5) your 	address, 	telephone 	number, 	and 	email 	address; 	(6) statement 	by 	the
submitter that the use of the material was not authorized and that, under penalty of
perjury, the information in the notice was accurate and authorized.” (Id.). Tim
responded within half an hour, but Amazon objects that he did not clearly identify
the specific copyright material, identify the true rights holder (Weekend Warrior), or
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provide a signature. (Id.). Again, Amazon rejected the report as incomplete. (Id. at
#10924).
After that failed attempt, on May 10, 2021, Tim tried to report the alleged
infringement through Amazon’s public notice form. (Id. at #10926–27). But to do so,
Tim had to create an Amazon account, which he did with his personal email address,
twhelan40@gmail.com. (Id. at #10929). Again, Tim flagged alleged infringements of
Weekend Warrior’s “Libeerty” jersey design. (Id. at #10926–27). And once again,
Amazon responded by requesting additional information. (Id. at #10927). So Tim
immediately replied with what he believed to be the requested specifics. But Amazon
again found that insufficient because the response did not include the original
information. (Id. at #10927–28).
Ten months later, Tim submitted another NOCI via the notice form. (Id. at
#10929). This time, he asserted infringement of the Bad Day to Be a Beer design. (Id.).
Amazon rejected this one, too. (Id. at #10930). Tim continued to submit NOCIs that
Amazon repeatedly rejected for incomplete information. (Id.).
From Amazon’s perspective, upon receiving these NOCIs, it attempted to verify
that they were valid complaints. To that end, Amazon checked the
associated with the submitter’s email address and believed it was tied to
. (Doc. 84-2, #10595).10 Beyond that, Amazon could not find any
10 More specifically, Amazon noted in a spreadsheet cataloging Whelan’s notifications that
there were “ 	.” (Bundy Dep., Doc. 76-
6, #8856/sealed Doc. 74-6, #7658). When Bundy inquired what “ 	” meant, “the only
explanation [he] got back [was] that they think it was a mistype to mean 	,” which in turn
stands for 	. (Id.). Considering that confusion, Weekend Warrior argues that
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connections between the email address and the purported rights holder, USA
Drinking Team. (Id.). Specifically, Amazon’s investigation determined that the NOCI
was “submitted by a person who was not a legitimate rights holder, based on a
number of warning signals: no 	, no 	no
, inconsistent and suspicious 	, and use of
.” (Id.). Several of those
red flags, however, involve Amazon’s internal services. For example, “ 	”
refers to whether that submitter has 	. (Doc.
76-6, #8852–53/sealed Doc. 74-6, #7654–55). Likewise,
refers to whether 	(Doc. 76-6, #8855/sealed
Doc. 74-6, #7657). So if someone
, like Tim here, then Amazon’s system flags the submitter as
likely fraudulent. (Id. at #8853–54/sealed Doc. 74-6, #7655–56).
Despite requesting that submitters provide a phone number and physical
address, Amazon does not have any guidance directing its investigators to call a
submitter regarding their report or send any physical mail to the provided address.
(Doc. 86-1, #10938/sealed Doc. 85-1, #10782). So Amazon did not reach out to Tim
either way. (Id.). And conversely, a submitter cannot call Amazon to discuss a NOCI.
(Id. at #10939/sealed Doc. 85-1, #10783).
Amazon does not truly know whether the records reflect a connection to the UAE. (Doc. 84-
2, #10595).
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As a result of the concerns it had identified with Tim’s NOCIs, Amazon put his
email address on its blocklist, meaning that Amazon would automatically reject any
future emails or notifications from that email address. (Doc. 84-2, #10596). There is
dispute over whether the support@officialusadrinkingteam.com email address was
also added to the blocklist. (Doc. 86-1, #10933). But if it was, that means that all of
Tim’s other pre-suit communications immediately went in the virtual trash can.
There 	is 	no 	appeal 	process 	if 	Amazon 	determines 	an 	email 	address 	is
fraudulent. That is, even if a submitter somehow learned they had been added to the
blocklist on those grounds, they would have no recourse with Amazon. (Id. at
#10942/sealed Doc. 85-1, #10786). On the other hand, if a user is “abusive” and added
to the blocklist, the user will be informed of the blocklist and given an opportunity to
appeal that decision. (Doc. 86-1, #10942–43/sealed Doc. 85-1, #10786–87). Amazon
only removed Tim’s email from the blocklist two weeks after Weekend Warrior filed
this suit. (Id. at #10943/sealed Doc. 85-1, #10787). Yet, for some reason, Amazon
placed Tim’s email on the blocklist again from June 28, 2024, until November 15,
2024. (Id. at #10943, 10945/sealed Doc. 85-1, #10787, 10789).
To Amazon’s credit, Tim was not the only person notifying Amazon of alleged
infringements of Weekend Warrior’s copyrights. Seven unrelated email addresses
submitted NOCIs regarding Bad Day to Be a Beer – America Edition, Bad Day to Be
a Beer, and Uncle Sam Griddy. (Doc. 84-2, #10596–97). Amazon similarly determined
these other submitters were not valid rights holders, and it added four of the email
addresses to its blocklist. (Id. at #10597). No evidence in the record suggests that the
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Whelans had anything to do with these NOCIs (meaning that, if the Whelans in fact
own the copyrights as to those images, these would be examples of fraudulent
NOCIs).
Furthermore, Amazon alleges that Weekend Warrior reached out regarding
only five specific copyrights: (1) Bad Day to Be a Beer, (2) Bad Day to Be a Beer
America 	Edition, 	(3) Leprechaun 	Griddy, 	(4) Pat 	McCrotch, 	and 	(5) Ameri-CAN
Eagle. (Id. at #10592). Accordingly, Amazon argues that Weekend Warrior did not
raise any issue about the other Asserted Copyrights before filing suit.
Weekend 	Warrior, 	however, 	contends 	that 	it 	notified 	Amazon 	of 	all 	its
copyrights by sending Amazon “a link to Weekend Warrior’s entire t-shirt catalogue
by linking to the [USA Drinking Team] webpage where all t-shirts are offered.” (Id.
at #10592–93). Likewise, Amazon alleges that Weekend Warrior notified it regarding
only 21 Accused Listings, but Weekend Warrior again points to the link to its website.
(Id. at #10593). Additionally, 107 of the 560 Accused Listings did not generate any
sales or advertising revenue. (Id. at #10594). Beyond that, though, from March 1,
2020, to at least February 24, 2025, “Amazon has sold over 20,000 discrete orders” of
Accused Listings. (Doc. 86-1, #10914, 10945–46/sealed Doc. 85-1, #10789–90).
D. 	Lawsuit.
Frustrated with the rejection and subsequent lack of response from Amazon, 11
Weekend Warrior filed this lawsuit on November 13, 2023. (See Compl., Doc. 1). It
11 Amazon alleges that it removed 8 of the Accused Listings before Weekend Warrior sued.
(Doc. 86-1, #10921). In looking at the cited spreadsheet, however, all of the complaints
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asserted direct, contributory, and vicarious copyright infringement claims. (Id. at
#15–18).
That sparked a response from Amazon. In its original Complaint, Weekend
Warrior claimed infringement for 19 designs. (Id. at #6–7). Two days later, Amazon
started 	removing 	the 	allegedly 	infringing 	designs. 	(Doc. 	84-2, 	#10597). 	In
communications 	between 	counsel, 	Amazon 	requested 	“high-quality” 	images 	of
Weekend Warrior’s copyrights so that it could further screen for infringing products.
(Id. at #10598). And “[b]y December 21, 2023, Amazon had identified and removed
more than 1,000 product listings.” (Id.). Moving forward, when Weekend Warrior’s
counsel would inform Amazon of infringing products, Amazon would remove those
listings within two weeks. (Id.). As of November 21, 2025, when Amazon submitted
its proposed facts, Amazon had taken down over 7,500 allegedly infringing listings,
far beyond the approximately 560 listings Weekend Warrior specifically highlighted,
many of which had zero sales. (Id. at #10599). Likewise, Amazon terminated over
Content Creators that were linked to one or more of the infringing listings. (Id. at
#10600).
Turning back to the procedural history, on February 27, 2024, Weekend
Warrior amended its complaint, supplementing its allegations but retaining the same
causes of action. (Doc. 17). Amazon then answered. (Doc. 19). From there, the parties
proceeded to discovery. While there were some difficulties along the way, (see 2/13/25
marked “accepted” were resolved in 2024, which would be post-lawsuit. (Sealed, manually
filed Ex. 24a).
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Min. Entry; 5/7/25 Min. Entry; 5/28/25 Min. Entry), the parties ultimately completed
discovery. Then on October 24, 2025, both sides moved for summary judgment on all
claims. (Docs. 66, 68). Each side responded to the other, (Docs. 84, 86), and replied,
(Docs. 90, 92). Additionally, the parties filed briefing regarding a relevant Supreme
Court decision issued last term. (Docs. 94, 95, 97; 4/6/26 Not. Order).
With that, the matter is ripe for the Court’s review.
LEGAL STANDARD
In evaluating the parties’ cross-motions for summary judgment, the Court
keeps in mind that “[t]he ‘party seeking summary judgment always bears the initial
responsibility 	of 	informing 	the 	district 	court 	of 	the 	basis 	for 	its 	motion, 	and
identifying those portions’ of the record which demonstrate ‘the absence of a genuine
issue of material fact.’” Rudolph v. Allstate Ins. Co., No. 2:18-cv-1743, 2020 WL
4530600, at 3 (S.D. Ohio Aug. 6, 2020) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986)). But if the moving party does so, the nonmoving party cannot defeat a
motion for summary judgment merely by pointing to just any factual dispute. As the
Sixth Circuit has explained, “the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material
fact.” Int’l Outdoor, Inc. v. City of Troy, 974 F.3d 690, 697 (6th Cir. 2020) (citation
modified).
In sum, the nonmoving party must present some “sufficient disagreement” that
would require submission to a jury. See Moore v. Phillip Morris Cos., Inc., 8 F.3d 335,
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340 (6th Cir. 1993) (citations omitted). In making that determination, though, the
Court must view the evidence in the light most favorable to the nonmoving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Cox v.
Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (“In arriving at a resolution, the
court must afford all reasonable inferences, and construe the evidence in the light
most favorable to the nonmoving party.”).
When both parties move for summary judgment, that does not change the
analysis the Court applies to either party’s motion. Rather, “the court must evaluate
each party’s motion on its own merits, taking care in each instance to draw all
reasonable inferences against the party whose motion is under consideration.” Black
v. Pension Benefit Guar. Corp., 973 F.3d 576, 581 (6th Cir. 2020) (quoting EMW
Women’s Surgical Ctr., P.S.C. v. Beshear, 920 F.3d 421, 425 (6th Cir. 2019)),
superseded on other grounds by amended opinion, 983 F.3d 858 (6th Cir. 2020). “The
fact that both parties have moved for summary judgment does not mean that the
court must grant judgment as a matter of law for one side or the other; summary
judgment in favor of either party is not proper if disputes remain as to material facts.”
Craig v. Bridges Bros. Trucking LLC, 823 F.3d 382, 387 (6th Cir. 2016) (quoting Taft
Broad. Co. v. United States, 929 F.3d 240, 248 (6th Cir. 1991)).
LAW AND ANALYSIS
Weekend Warrior moves for summary judgment on all three counts: (1) direct
infringement, (2) contributory infringement, and (3) vicarious infringement. (Docs.
66, 73). It also argues that the undisputed facts show that Amazon willfully infringed
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its copyrights, subjecting Amazon to additional damages. (Doc. 66, #6862–65).
Amazon, by contrast, seeks summary judgment in its favor as to all three counts, and
additionally asserts several partial defenses in the event the Court finds that the case
should move forward as to any of the three. (Doc. 73, #7149–79).
The Court starts by addressing whether Weekend Warrior has valid, original
copyrights in the first place. It ultimately determines that a genuine dispute of
material fact exists on that front, which precludes summary judgment in Weekend
Warrior’s favor. Then, assuming that Weekend Warrior possesses at least one valid
copyright, the Court analyzes whether Amazon could be found liable as a direct,
contributory, 	or 	vicarious 	infringer. 	The 	Court 	concludes 	that 	contributory
infringement does not fit the circumstances here, but that Amazon could be found
liable under a direct or vicarious liability theory. Thus, the Court DENIES Weekend
Warrior’s 	summary 	judgment 	motion, 	(Doc. 	66), DENIES 	Amazon’s 	summary
judgment motion on the direct and vicarious infringement counts, but GRANTS
summary judgment for Amazon on the contributory liability front.
A. 	Copyright Infringement Generally.
The Constitution provides that “Congress shall have Power … To promote the
Progress of Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries.” U.S.
Const. art. I, § 8, cl. 8. Congress has since exercised that authority and codified
protection 	for 	“original 	works 	of 	authorship 	fixed 	in 	any 	tangible 	medium 	of
expression,” including as relevant here, “pictorial, graphic, and sculptural works.”
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17 U.S.C. § 102(a)(5). The author enjoys specific exclusive rights such as the right to
“reproduce” the work, to “prepare derivative works,” to “distribute copies,” and “to
display the copyrighted work publicly.” Id. § 106. If someone violates one of these
exclusive 	rights, 	the 	author 	can 	pursue 	a 	copyright 	infringement 	claim. 	And
“[c]opyright infringement is a strict liability offense,” meaning that “a plaintiff is not
required to prove unlawful intent or culpability” to recover. EMI Christian Music
Grp., Inc. v. MP3tunes, LLC, 844 F.3d 79, 89 (2d Cir. 2016); see also, e.g., Rearden,
LLC v. Walt Disney Pictures, 152 F.4th 1058, 1072 (9th Cir. 2025) (same); Sony BMG
Music Ent. v. Willis, No. 1:07-cv-156, 2008 WL 2120837, *3 (S.D. Ohio May 19, 2008)
(collecting additional authorities).
A copyright owner can pursue recovery under either a direct or secondary
liability theory. “Direct copyright infringement claims hold the specific infringer
liable.” Tomelleri v. SunFrog, LLC (Tomelleri II), 721 F. Supp. 3d 566, 572 (2024)
(citation omitted). To establish a direct infringement claim, “the claimant must prove
two elements: ‘(1) ownership of a valid copyright, and (2) copying of constituent
elements of the [copyrighted] work that are original.’” RJ Control Consultants, Inc. v.
Multiject, LLC, 100 F.4th 659, 667 (6th Cir. 2024) (quoting Feist Publ’ns, Inc. v. Rural
Tel. Serv. Co., 499 U.S. 340, 348 (1991)).
As for secondary liability, while “[t]he Copyright Act does not expressly render
anyone liable for infringement committed by another,” the Supreme Court has
recognized theories of contributory infringement and vicarious liability. Sony Corp.
of Am. v. Universal City Studios, Inc., 464 U.S. 417, 434–35 (1984); Metro-Goldwyn-
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Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005); Cox Commc’ns, Inc. v.
Sony Music Ent., 146 S.Ct. 959, 964 (2026). Secondary liability claims, though, still
depend on a third party actually committing direct infringement. Tomelleri II, 721 F.
Supp. 3d at 572. That is, absent direct infringement, there cannot be secondary
infringement. So the Court begins with the questions of whether Weekend Warrior
has valid copyrights for each design and whether the Accused Listings copy any
original elements of those designs. Then the Court will evaluate whether Amazon
specifically can be held liable for the alleged infringement.
1. 	A 	Genuine 	Dispute 	of 	Material 	Fact 	Exists 	Regarding 	the
Originality of Each of Weekend Warrior’s Designs, Precluding
Summary Judgment for Weekend Warrior.
The first element is whether the plaintiff has a valid copyright in the works at
issue. 	RJ 	Control 	Consultants, 	100 	F.4th 	at 	667. 	If 	the 	plaintiff 	possesses
registrations from the Copyright Office, that establishes “prima facie evidence of the
validity of the copyright and of the facts stated in the certificate.” Calibrated Success,
Inc. v. Charters, 72 F. Supp. 3d 763, 769 (E.D. Mich. 2014) (citing 17 U.S.C. § 410(c));
Premier Dealer Servs., Inc. v Allegiance Adm’rs, LLC, 93 F. 4th 985, 989 (6th Cir.
2024) (“If an author registers a copyright within five years of its first publication, it
receives a statutory presumption of validity.”). But the presumption of validity is
rebuttable. Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 477 (6th Cir.
2015). In a sense, the registration shifts the burden to the alleged infringer to offer
facts that would invalidate the copyrights. Id. (citing Hi-Tech Video Prods., Inc. v.
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Cap. Cities/ABC, Inc., 58 F.3d 1093, 1095 (6th Cir. 1995)). But the ultimate burden
of persuasion remains, at all times, on the copyright owner. Fed. R. Evid. 301.
The Court starts with Weekend Warrior’s prima facie case before turning to
Amazon’s various arguments that Weekend Warrior’s designs either are unoriginal
or are unlawful derivative works and thus not entitled to copyright protection.
Ultimately, the Court concludes that genuine disputes of material fact regarding the
copyrightability of its various designs, coupled with the parties’ failure to provide a
detailed 	image-by-image 	analysis 	of 	the 	originality 	issues, 	prevent 	summary
judgment either way on the question.
a. 	Weekend Warrior Satisfies Its Initial Burden.
Here, Weekend Warrior alleges that Tim registered each design with the
Copyright Office and Dan, as illustrator, assigned each copyright to Weekend
Warrior. (Doc. 66, #6858). In the Amended Complaint, Weekend Warrior listed its 48
copyrighted designs and attached copies of the certificates, as well as information for
two pending copyrights that have been approved since then. (Doc. 17, #123–25 (list),
140–243 (certificates); Tim Decl., Doc. 64, #6722–23; Doc. 64-3 (King of the Kill); Doc.
64-4 (St. PatRIZZ Day)).12 These registrations mean that Weekend Warrior has made
its prima facie showing of a valid copyright for each of the 50 designs.
12 See supra note 4 for complete list of copyrights.
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b. 	The Court Cannot Conclude as a Matter of Law Weekend
Warrior’s Designs Are Validly Copyrighted.
The presumption that a copyright certificate affords, however, only goes so far.
Here, Amazon argues that, registration notwithstanding, genuine disputes remain as
to whether Weekend Warrior’s copyrights are valid—either because the drawings
were not sufficiently original or because (at least as to 21 of the images13 ) they were
unlawful derivative works. Moreover, recall that, once Amazon puts forward facts
calling validity into question, the ultimate burden on proving validity falls on
Weekend Warrior. So both parties have some work to do.
Ultimately, neither side gets all the way home. While this case involves 50
distinct images, the parties largely eschew an image-by-image analysis in favor of
either (1) focusing their arguments on a few specific images (see, e.g., Weekend
Warrior MSJ, Doc. 66, #6858–61; Amazon Resp., Doc. 85, #10714 (referring to an
exhibit that includes preexisting works allegedly relating to some of Weekend
Warriors copyrighted images)), or (2) talking in broad generalities (Doc. 85, # 10713
(noting that designer “used preexisting images” in creating his own images without
specifying what images or how the designer used them in connection with creating
any of the specific copyrighted works)). That said, the Court finds that Weekend
13 Those 21 designs are: (1) Uncle Sam’s American Lager, (2) I Want Brew, (3) Papa Woody
Plumbing, (4) Fantasy Football Legend, (5) Bad Day to Be a Cerveza, (6) Griddy Cerveza,
(7) Bad Day to Be a Beer – America Edition, (8) Ameri-CAN Eagle, (9) Meri-CAN Eagle,
(10) Ameri-CAN V2, (11) Poor Day to Be a Pilsner, (12) Real American – Uncle Sam,
(13) Ameri-CAW, (14) Bad Day to Be a Beer – Christmas Edition, (15) Can’t Get Hungover,
(16) Do You Feel Lucky, (17) Pat McCrotch Irish Pub, (18) Enjoy Beer, (19) Enjoy Beer – Ugly
Sweater, (20) Make Mullets Great Again, and (21) Protect the Charms. (Doc. 73, #7184–95).
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Warrior carries its burden of persuasion as to the 29 images that Amazon does not
challenge as derivative, but not as to those remaining 21 images.
The Copyright Act protects only “original works of authorship,” 17 U.S.C.
§ 102(a), and does not extend to “any portion of the work that is not original to the
author,” Hiller, LLC v. Success Grp. Int’l Learning All., LLC, 976 F.3d 620, 627 (6th
Cir. 2020) (citation modified); see 17 U.S.C. § 103(b). So “[o]ne way to rebut the
presumption of validity is to show that the work is not original.” Premier Dealer
Servs., 93 F.4th at 989 (citing Varsity Brands, 799 F.3d at 476). Original, for purposes
of copyright law, “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.” Hiller, 976 F.3d at 626 (quoting Feist Publ’ns, Inc., 499 U.S. 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.” Id. (quoting
Feist, 499 U.S. at 345).
Amazon contends that the images here (presumably all of them) do not offer
the requisite level of originality. But that argument comes in a few flavors. First,
Amazon makes a blunderbuss allegation about all of the designs. It claims that,
because Tim Whelan conceded that he “used preexisting images” as a starting point,
that, in and of itself, is enough to “create [a] fact question[]” as to whether his works
are original. (Doc. 85, #10713). The Court disagrees. The registration carries the day
on originality, at least as a prima facie matter. And Amazon cannot overcome that
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presumption merely by saying “not so,” based on some broad reference to Whelan’s
use of preexisting works.
Second, Amazon relies on an expert report from Caroline de Baere that is
directed at the originality, or lack thereof, of the designs. (Id. at #10715). And that
report at least takes the designs on a design-by-design approach (or at least a group-
by-group-of-related-designs approach). (See de Baere Exp. Rep., Doc. 57-4). But de
Baere’s opinions on originality are underwhelming, at best. It is not at all clear to the
Court exactly what standard of originality she applies, and her application of that
standard, whatever it is, appears to be subjective, at least so far as the Court can tell.
So, once again, the Court finds that insufficient to overcome the registration as to the
originality of the designs.
But Amazon makes a separate argument as to 21 of the designs. Here, Amazon
puts forth specific preexisting designs and claims that Weekend Warrior’s designs
are derivative works. And as to these designs, Amazon not only claims that Weekend
Warrior cannot get summary judgment, but that Amazon is itself entitled to
summary judgment.
The Copyright Act defines a derivative work as one “based upon one or more
preexisting works.” 17 U.S.C. § 101. The author of the preexisting work generally
enjoys the exclusive right to create derivative works. Id. § 106(2). “Accordingly, when
a person creates a derivative work without the original author’s permission, that
person has unlawfully used the original work.” Hiller, 976 F.3d at 629. At the same
time, 	the 	right 	to 	control 	derivative 	works 	is 	not 	unlimited. 	“The 	copyright
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laws … attempt to strike a balance between rewarding the creative labor of authors
of original works, and promoting further creativity by allowing public access to their
works.” Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1199 (10th Cir.
2005) (citing Sony Corp., 464 U.S. at 429). So the Act provides protection for new
works that include some preexisting material, but “[t]he copyright in a … derivative
work extends only to the material contributed by the author of such work, as
distinguished from the preexisting material employed in the work.” 17 U.S.C.
§ 103(b). Moreover, “protection for a work employing preexisting material in which
copyright subsists does not extend to any part of the work in which such material has
been used unlawfully.” Id. § 103(a).
Here, as noted, Amazon claims that 21 of Weekend Warrior’s designs are
derivative of various third-party works it has provided to the Court, which it says
invalidates those copyrights. But there is one problem right off the bat—Amazon has
not 	provided 	evidence 	that 	these 	third 	parties’ 	works 	are 	themselves 	in 	fact
copyrighted. Sure, some of the preexisting materials come from major brands, such
as Samuel Adams, Corona, and Budweiser, or from movies like Conan the Barbarian
and How the Grinch Stole Christmas. (See, e.g., Doc. 84-1, #10512, 10520, 10524,
10527, 10530, 10550). Those companies and productions likely copyrighted their
work.14 But that presumption weakens with preexisting works such as “Uncle Sam
14 Two companies, Conan Properties International LLC (Conan the Barbarian movie) and
Budweiser, sent Weekend Warrior cease-and-desist letters to stop using their preexisting
works. (Doc. 84-1, #10520–21, 10530). So there is an even stronger presumption of copyright
for those two companies, although the Court still does not possess a copyright registration
for those preexisting designs either.
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with Beer” or the “Freedom” t-shirt, where Amazon merely noted the designs were
“available on the internet.” (Id. at #10515 & n.4, 10548 & n.26). In short, Amazon has
failed to establish as a matter of undisputed fact that the images on which it relies
are themselves copyrighted images. And because Weekend Warrior cannot have
infringed the exclusive right to create derivative works if there was not an underlying
copyrighted work, see 17 U.S.C. § 106(2), the Court cannot conclude as a matter of
law that these 21 designs are derivative works as the Copyright Act uses that term.
Then there is a separate problem. Even if Amazon had shown that the
preexisting works were copyrighted, there is still the question of fair use. See 17
U.S.C. § 107. A use of a preexisting work that falls within that statutory defense is
lawful, even if unauthorized. And, on the facts here, a jury could reasonably find that,
at least as to many of the underlying preexisting works, Weekend Warrior’s use falls
within the fair use defense. So, once again, at least at the summary judgment stage,
the Court is not prepared to say as a matter of law that the works are derivative.
Which means that Amazon’s motion for partial summary judgment on that issue fails.
At the same time, though, while Amazon has not crossed the goal line on
whether the 21 works are derivative, it has at least created at least a genuine dispute
of material fact on that front. That is, the Court finds that a reasonable jury could
conclude that these 21 designs are derivative works that Weekend Warrior has
unlawfully used. And if the jury makes that finding, then Weekend Warrior does not
have a valid copyright in those designs.
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2. 	Copying.
With the Court’s analysis of the first element complete, the Court briefly
addresses the second element: whether the records shows the defendant copied the
plaintiff’s work. Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir. 2003). Generally, a
“plaintiff can show copying in two ways, either through direct evidence of copying, or
by indirect evidence.” R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 274
(6th Cir. 2010) (citing Kohus, 328 F.3d at 853–54). For the latter, “a plaintiff may
establish ‘an inference of copying by showing (1) access to the allegedly-infringed
work by the defendant(s) and (2) a substantial similarity between the two works at
issue.” Id. (quoting Kohus, 328 F.3d at 853–54).15
At first glance, this element seems easily met. First, Weekend Warrior’s
designs are all shown on its publicly available website, so access is clear. Second, it
submitted a chart with side-by-side comparisons of its designs and the 560 Accused
Listings. (Docs. 33, 33-1, 33-2). That chart shows exact, or near exact, copies of
Weekend Warrior’s designs. (Id.). So substantial similarity does not seem like a heavy
lift.
Amazon argues though that more is required. After all, “[n]ot all ‘copying’ is
actionable 	…: 	it 	is 	a 	constitutional 	requirement 	that 	a 	plaintiff 	bringing 	an
15 In Weekend Warrior’s original motion, it argued that the exact copies constituted direct
evidence. But this still requires an inference that a third-party did the physical act of copying
Weekend Warrior’s design. See R.C. Olmstead, 606 F.3d at 274 (affirming district court’s
holding that evidence of programmers accessing copyrighted software multiple times while
developing allegedly infringing software did not constitute direct evidence as it required an
inference of copying). Thus, Weekend Warrior needed to follow the indirect-evidence
framework.
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infringement claim must prove ‘copying of constituent elements of the work that are
original.’” Kohus, 328 F.3d at 853 (citing Feist, 499 U.S. at 361). Consistent with that,
as a general matter, to establish that the asserted design and alleged infringing
design are substantially similar, the Sixth Circuit employs a two-part test. Id. at 855.
“[T]he first step ‘requires identifying which aspects of the artist’s work, if any, are
protectible by copyright,’ the second ‘involves determining whether the allegedly
infringing work is ‘substantially similar’ to protectible elements of the artist’s work.”
Id. (quoting Sturdza v. United Arab Emirates, 281 F.3d 1287 (D.C. Cir. 2002)). “The
essence of the first step is to filter out the unoriginal, unprotectible elements—
elements that were not independently created by the inventor, and that possess no
minimal degree of creativity.” Id. (citing Feist, 499 U.S. at 345). And Amazon contends
that Weekend Warrior has failed to identify the protectible elements.
On the facts here, though, the Court concludes that the two-part test is not
necessary—at least not as to all of the alleged instances of infringement. Where the
allegedly infringing image is a pixel-by-pixel copy of the copyright owner’s design, it
necessarily includes all elements of the first image—those that are protectible and
those that are not. So the only question is whether the original image had any
protectible elements. But that is merely to re-ask the original question of whether the
original image is covered by a valid copyright. In short, as to any image for which
there is a valid copyright, and as to which the image on the Amazon website is a pixel-
by-pixel copy, the copying prong will not prove a stumbling block.
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The problem for Weekend Warrior, though, is that this syllogism works only
as to exact copies, and it has not identified which of the Amazon images are exact
copies and which are not. True, it provided the Court an exhaustive list of the various
Amazon products it accuses of infringing, with the image on each such product
juxtaposed against the allegedly infringed Weekend Warrior design. And admittedly,
as to some of those, the copy seems exact. (See, e.g., Doc. 33, # 1458). As to others,
though, that is by no means clear, (see, e.g., id. at #1469 (mug turned different
direction, 	font 	different, 	hand 	placement 	different), 	#1479 	(beer 	can 	different
appearance)). And, given that there are 567 pages of accused Amazon products (and
corresponding Weekend Warrior designs), the Court is not inclined to dig through the
record on its own to see which are which. United States v. Dunkel, 927 F.2d 955, 956
(7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”).
Of course, as to any instances of alleged infringement that do not involve exact
copies, the Sixth Circuit’s two-step test comes back into play. And Weekend Warrior
has not even tried to make the necessary showing under that test.
In sum, Weekend Warrior has failed to carry its burden of showing both
steps—ownership of a valid copyright and evidence of copying—for the 50 designs it
asserts. And while it may have made the necessary showing as to some of them, the
Court is not inclined to dig through the record to sort that out on its own. Accordingly,
the Court denies Weekend Warrior summary judgment.
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B. 	Amazon’s Liability.
But that is not the end of the story. While Weekend Warrior is not entitled to
summary judgment that infringement occurred, it is certainly possible that it could
convince a jury that, as to some or all of the images, Weekend Warrior has a valid
copyright and copying has occurred. But, in Amazon’s motion for summary judgment,
it contends that, even if Weekend Warrior did so, Amazon itself would not be liable
for that infringement. That is, given the way in which Merch on Demand is
structured, Amazon says that its role is sufficiently removed from any alleged
infringement that it is not liable, whether as a direct infringer, a contributory
infringer, or a vicarious infringer. The Court agrees with Amazon as to the second,
but not the first (at least as to products Amazon actually sold) or third.
1. 	A Genuine Dispute Remains as to Whether Amazon Engaged in
Volitional 	Conduct 	and 	Thus 	Could 	Be 	Liable 	for 	Direct
Infringement.
Start with direct infringement. Generally, “[d]irect copyright infringement
claims hold the specific infringer liable.” Tomelleri II, 721 F. Supp. 3d at 572. Contrast
that with secondary infringement claims that impose “liability for actions of third
parties.” BWP Media USA, Inc. v. T & S Software Assocs., Inc., 852 F.3d 436, 439 (5th
Cir. 2017) (citing Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913,
930 (2005)). While “the lines between direct infringement, contributory infringement,
and vicarious liability” have never been “clearly drawn,” Sony Corp. of Am. v.
Universal City Studios, Inc., 464 U.S. 417, 435 n.17 (1984), the distinctions have only
gotten murkier with the rise of internet service providers and online platforms. On
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these platforms, as is the case here, a third party uploads the allegedly infringing
content, and the defendant effectively hosts it. With this division, courts have
struggled with whether direct liability, as opposed to secondary liability, is the
appropriate framework. To address this dilemma, “courts have trended toward
requiring volitional conduct” as a prerequisite for imposing direct liability. BWP
Media, 852 F.3d at 439.
Amazon seeks to take full advantage of this trend. It maintains that Weekend
Warrior has failed to establish any volitional conduct by Amazon, and says this
failure is “dispositive” of Weekend Warrior’s direct infringement claim. (Doc. 86,
#10882). Weekend Warrior, on the other hand, argues that “this Court is not bound
to apply [the volitional-conduct requirement] in the first place.” (Doc. 84, #10453). So
the Court starts with the question of whether the volitional-conduct doctrine applies.
Concluding that it does, the Court then turns to whether a jury could find that
Amazon has engaged in such volitional conduct here.
a. 	A Plaintiff Must Show Volitional Conduct to Succeed on a
Direct Infringement Claim.
“The ‘volitional conduct’ requirement is typically implicated in copyright
infringement 	cases 	involving 	a 	defendant 	who 	operates 	an 	online 	service 	or
mechanism that is ‘used by third parties to reproduce (or perform, display, or
distribute) a copyrighted work.’” Tomelleri II, 721 F. Supp. 3d at 574–75 (quoting
Robert C. Denicola, Volition and Copyright Infringement, 37 Cardozo L. Rev. 1259,
1272 (2016)). The question is “over the authorship of the infringing conduct.” Cartoon
Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 130 (2d Cir. 2008). The
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volitional-conduct requirement clarifies that issue and “properly categorize[s] claims
against infringers as direct copyright claims while categorizing claims against
providers as secondary claims.” Tomelleri II, 721 F. Supp. 3d at 575 (citations
omitted).
The first case to implement a volitional-conduct requirement was Religious
Technology Center v. Netcom On-Line Communication Services, 907 F. Supp. 1361
(N.D. Cal. 1995). In Netcom, the district court held that the owner of an online
bulletin board could not be directly liable for copyrighted works uploaded onto its
website. Id. at 1372–73. The Netcom court reasoned that there needed to be a greater
connection between the defendant’s conduct and the infringement to establish
liability: “Although copyright is a strict liability statute, there should still be some
element of volition or causation which is lacking where a defendant’s system is merely
used to create a copy by a third party.” Id. at 1370.
The name itself though, “volitional conduct,” is somewhat misleading. “[T]he
word ‘volition’ in this context does not really mean an ‘act of willing or choosing’ or an
‘act of deciding.’” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666 (9th Cir. 2017)
(quoting 	Webster’s 	Third 	New 	International 	Dictionary 	(1986)). 	Rather, 	it 	is
essentially a causation requirement. After all, “proximate causation historically
underlines copyright infringement liability no less than other torts.” Id. (citations
omitted); see also 4 Nimmer on Copyright § 13E.09 (2026) (collecting cases and
concluding that “properly understood, ‘volition’ signals the same type of inquiry into
proximate cause as elsewhere in tort doctrine.”). The Fourth Circuit has required
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“actual infringing conduct with a nexus sufficiently close and causal to the illegally
copying that one could conclude that the machine owner himself trespassed on the
exclusive domain of the copyright owner.” CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d
544, 550 (4th Cir. 2004). Put simply, “direct liability must be premised on conduct
that can reasonably be described as the direct cause of the infringement.” Perfect 10,
847 F.3d at 666 (citation omitted) (emphasis in original).
Without a doctrine akin to the volitional-conduct requirement, there would be
increasing overlap between direct and secondary liability for online platforms that
would only confuse these areas of law. As Justice Scalia warned:
The distinction between direct and secondary liability would collapse if
there were not a clear rule for determining whether the defendant
committed 	the 	infringing 	act. 	The 	volitional-conduct 	requirement
supplies 	that 	rule; 	its 	purpose 	is 	not 	to 	excuse 	defendants 	from
accountability, but to channel the claims against them into the correct
analytical track.
Am. Broad. Cos., Inc. v. Aereo, Inc., 573 U.S. 431, 455 (2014) (Scalia, J., dissenting)
(citations omitted). With these considerations in mind, “every circuit to address this
issue has adopted some version of Netcom’s reasoning and the volitional-conduct
requirement.” BWP Media, 852 F.3d at 440 (collecting cases).
Importantly, though, as Weekend Warrior points out, the phrase “every circuit
to address this issue” does not include the Sixth Circuit. (Doc. 84, #10453). But that
of course also means that the Sixth Circuit has not rejected such a requirement. In
fact, “several district courts within the Sixth Circuit classify the Sixth Circuit’s
decision in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005),
as implicitly adopt[ing] the requirement.” Tomelleri II, 721 F. Supp. 3d at 576 n.5
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(collecting cases). In any event, without passing on whether the Sixth Circuit has
tacitly adopted the volitional-conduct requirement, this Court agrees with courts
around the country that causation is a necessary showing, even for strict liability
causes of action, and that volitional conduct serves an important “channeling
function” between the different theories of liability. Robert C. Denicola, Volition and
Copyright Infringement, 37 Cardozo L. Rev. 1259, 1295 (2016).
Moreover, Weekend Warrior does not offer a compelling argument as to why
the Court should not follow the trend that requires a volitional-conduct showing.
Rather, Weekend Warrior merely observes that the Sixth Circuit has not officially
adopted the doctrine. (See Doc. 84, #10453). It then goes on to note that copyright
infringement is a strict liability tort. (Id. at #10453–54). On that latter front,
Weekend Warrior is of course correct that “‘volitional’ must not be mistaken for
‘intentional’ or ‘knowing.’” Flowers, Inc. v. Springhill Floral & Gift Supply Co., No.
5:24-cv-590, 2025 WL 3003931, at *4 (N.D. Ohio Oct. 27, 2025). In other words, “lack
of knowledge [that certain conduct is infringing] is no defense.” Stokes v. Brinor, Inc.,
683 F. Supp. 3d 713, 724 (N.D. Ohio 2023). But properly understood, a volitional-
conduct requirement is consistent with strict liability. The Court inquires only into
the defendant’s conduct, not the defendant’s state of mind. In sum, the Court
concludes that a volitional-conduct requirement is an appropriate mechanism for
delimiting the outer bounds of direct infringement.
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b. 	Contours of the Volitional-Conduct Requirement.
But then there is the separate question of what counts as volitional conduct.
As just described, the volitional-conduct requirement simply clarifies that the
Copyright Act “requires conduct by a person who causes in some meaningful way an
infringement.” CoStar Grp., 373 F.3d at 549. Historically, print shops and mere
photocopiers did not meet that standard. See id. at 550 (“When a customer duplicates
an infringing work, the owner of the copy machine is not considered a direct
infringer.”); Aereo, 573 U.S. at 455 (Scalia, J., dissenting) (“[T]he customer chooses
the content and activates the copying function; the photocopier does nothing except
in response to the customer’s commands. Because the shop plays no role in selecting
the content, it cannot be held directly liable when a customer makes an infringing
copy.” (citation omitted)); BWP Media, 852 F.3d at 442 (“When a copy-shop owner
makes a photocopier available to customers, but a customer brings in the copyrighted
work and makes the copy himself, the infringing conduct is attributable only to the
customer.”).
Translating that principle into the internet age has proven a little more
challenging. Let’s start with something on which courts generally agree—internet
providers 	do 	not 	engage 	in 	volitional 	conduct 	when 	customers 	upload 	and/or
distribute infringing content via the provider’s automated processes. For example, in
Perfect 	10, 	the 	defendant 	essentially 	operated 	“online 	bulletin 	boards” 	where
subscribers could access content on its servers as well as from other connected
providers. 847 F.3d at 663. The defendant did not upload content onto the servers
itself; instead, the content was “almost exclusively user-driven.” Id. Perhaps not
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surprisingly, some of the images that users uploaded to these bulletin boards
infringed others’ (including the plaintiff’s) copyrights. Id. at 664. But the Ninth
Circuit concluded the plaintiff had not established that the defendant engaged in any
volitional 	conduct 	because 	the 	“evidence 	before 	[it] 	show[ed] 	only 	that 	[the
defendant’s] actions were akin to ‘passively storing material at the direction of users
in 	order 	to 	make 	that 	material 	available 	to 	other 	users 	upon 	request,’ 	or
automatically copying, storing, and transmitting materials upon instigation by
others.” Id. at 668 (quoting CoStar, 373 F.3d at 555).
The cases reaching similar results are legion. See, e.g., BWP Media, 852 F.3d
at 438, 442 (holding internet service provider could not be directly liable because it
only “hosts the forum on which infringing content was posted, but its connection to
the infringement ends there.”); Average Joe’s Ent. Grp., LLC v. SoundCloud, Ltd., No.
3:16-cv-3294, 2018 WL 6582829, at *4 (M.D. Tenn. Oct 17, 2018) (rejecting direct
infringement claim for lack of volitional conduct where defendant did not “exercise
control of the selection of any material for upload, download, transmission, or storage;
users exercise[d] that control”); White v. DistroKid, LLC, 766 F. Supp. 3d 451, 454,
461 (S.D.N.Y. 2025) (dismissing claim of direct infringement by music distribution
platform because “volitional conduct is not shown merely by alleging that a system
copied, reformatted, or distributed copyrighted material” and there was “nothing in
the amended complaint to suggest that these acts were anything other than part of
an automated process”); VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723, 733 (9th Cir.
2019) (affirming dismissal of direct infringement claim for lack of volitional conduct
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because Zillow did not select the infringing photos on its website or otherwise
“exercise control … beyond the general operation of its website” (cleaned up)).
Overall, “[a]utomated actions, by themselves, do not amount to a ‘deliberate role’”
such that a defendant transforms from a “passive provider of a space in which
infringing activities happened to occur to an active participant in the process of
copyright infringement.” White, 766 F. Supp. 3d at 461 (quotation omitted).
On the other end of the spectrum, defendants engage in volitional conduct
when they select the content for sale. For example, in Flowers, the defendants chose
which products to buy from a third-party manufacturer before marketing, selling, and
distributing them. 2025 WL 3003931, at *2. Some of those selections proved to be
infringing designs. Id. The district court determined that “the undisputed facts show
defendants’ non-passive and non-automatic involvement in the alleged infringement
[because] the undisputed facts show defendants purchasing, receiving, marketing,
and distributing [p]roducts bearing the [infringing] [d]esigns.” Id. at *5; see also
Aereo, 573 U.S. at 455 (Scalia, J., dissenting) (The “selection and arrangement by the
service provider constitutes a volitional act directed to specific copyrighted works.”).
But things get more complicated when, like Amazon here, a third-party creator
uploads a design, but the defendant acts as the manufacturer and seller. In that
setting, courts are less uniform. For example, in Wolk v. Kodak Imaging Network, a
third-party website, Photobucket, allowed users to upload photos. 840 F. Supp. 2d
724, 730 (S.D.N.Y. 2012). Kodak (the defendant) maintained a website that allowed
users to “order prints of and products containing their digital photographs,” including
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photos uploaded to Photobucket. Kodak would then handle manufacture and delivery
of any ordered products. Id. The plaintiff alleged that users had uploaded copies of
her copyrighted work to Photobucket and that Kodak had then arranged for the
manufacture of products containing those copyrighted works at the direction of
Photobucket users. Id. at 732. She sought to hold Kodak responsible. Id. Applying the
above principles, the district court determined there was no evidence of volitional
conduct because the reproduction and display of the copyrighted works occurred
through an “automated process with no human intervention by any employee of the
Kodak Defendants.” Id. at 742. Specifically, “[t]he fact that Wolk’s images are copied
into product simulations in addition to being transmitted to fulfillment vendors does
not constitute a volitional act where the copying is automated.” Id. (citation omitted);
see also Tomelleri II, 721 F. Supp. 3d at 577 (overruling objection to recommendation
to dismiss direct infringement claim where the plaintiff alleged that the defendants
“marketed, advertised, and sold” infringing works but did not allege that the
defendants selected the infringing works (emphasis omitted)).
Contrast that, though, with Atari Interactive, Inc. v. Redbubble, Inc., 515 F.
Supp. 	3d 	1089 	(N.D. 	Cal. 	2021). 	There, 	Redbubble 	provided 	a 	“global 	online
marketplace where independent artists upload their designs and creative works for
sale on a range of products.” Id. at 1096. Sound familiar? Atari complained that some
of the resulting products included Atari’s copyrighted images. Redbubble defended on
volitional conduct grounds. The court agreed with Redbubble in terms of Redbubble’s
display of the simulated products on its website:
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[T]he Court finds that Redbubble does not “exercise control (other than
by 	general 	operation 	of 	its 	website)” 	for 	display 	rights. 	Although
Redbubble arguably modifies the infringing images it receives from
artists by applying them to stock photos of physical goods such as
apparel, those acts do not demonstrate the type of control that will
support direct liability. Any modification occurs automatically with no
intervening act by Redbubble employees. Nor does Redbubble “select
any material for upload, download, transmission, or storage.”
Id. at 1112–13 But it reached a different result as to products that Redbubble actually
sold:
On the other hand, there is a question of material fact whether
Redbubble “instigates any copying, storage, or distribution” of infringing
images. As described in Section V.A, supra, Redbubble holds itself out
as the seller of the goods on its website. Redbubble offers those items for
sale and then facilitates or causes their creation and delivery, with no
involvement from the artists who uploaded the designs. Even though
each step is performed automatically by a computer, the acts remain
volitional because Redbubble designed its software to accomplish those
tasks and for its own financial benefit. Moreover, Redbubble exercises
control over every aspect of the sale, from manufacturing to shipping
and returns, and thus holds the best position to prevent infringement.
Accordingly, since Redbubble actively instigates and exercises control
over the sales on its website, a reasonable jury could find that Redbubble
is liable for direct infringement of Atari's copyright distribution rights.
Id. at 1113. In short, courts are of more than one mind in discussing the exact
contours of the volitional conduct requirement in cases where the internet service
provider is a hybrid of a bulletin board and a manufacturer for distribution.
This Court concludes that the appropriate question to ask is whether the
alleged infringer has a non-automated involvement in the infringing activity. That is,
the Copyright Act assigns the owner certain specific rights. When it comes to material
like the designs here, those rights include reproduction, sale, and public display.
17 U.S.C. § 106. So the question is whether the alleged infringer took volitional steps
to accomplish one of those specific acts. Hosting a bulletin board, where users can
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display anything with no oversight, is not a volitional display. But if the host reviews
the material before posting, the posting starts looking more like the host’s own act.
Similarly, on sites like eBay, Craigslist, or Facebook Marketplace, where the host
merely creates a forum in which others sell with minimal oversight, it is hard to
ascribe the resulting sales to the host itself. They operate the marketplace generally,
not the individual stalls where goods are sold. But, if the host, for example, were to
review items beforehand, post for sale only those it thinks will sell, choose the price,
and name itself as the seller, that would make the host’s involvement in the sale look
more volitional.
c. 	Application to Amazon’s Merch on Demand Service.
With those principles in mind, turn to the case here. While Weekend Warrior’s
summary judgment motion did not argue that Amazon engaged in volitional conduct,
it responded to Amazon’s assertion of the rule. (Doc. 84, #10453–59). It primarily
asserts that the volitional-conduct requirement is not truly a requirement, as
discussed above, it also argues in the alternative that Amazon engaged in volitional
conduct. (Id. at #10457–59). On that front, Weekend Warrior highlights that Amazon:
(1) “screens applicants attempting to join Merch;”; (2) retains the right to terminate
user accounts after creating the listing; (3) “controls how many designs Merch
creators can offer”; (4) “screen[s] designs before they appear on Merch for quality and
compliance with Amazon’s policies,” including any “obvious” infringement; (5) utilizes
human reviewers to flag potential infringement; (6) generates ad revenue from
accused listings, both on its own website and on Google; (7) handles shipping of all
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Merch products; (8) fully controls customer service requests; (9) is the “seller of
record” for Merch designs; and (10) manufactures the Merch products. (Id. at #10457–
58).
Amazon does not dispute those facts, but it contends that they do not qualify
as volitional conduct. In that regard, Amazon highlights that none of these actions
involve the selection of any designs or other active involvement in the design process.
(Doc. 92, #11283–84).
This case presents a close call. The Court concludes, however, that Amazon’s
involvement in the alleged infringement here, at least for products actually shipped
to customers, creates a genuine dispute as to whether it has engaged in volitional
conduct, both as to display and as to any resulting sales. Start with the former. As
Weekend Warrior highlights, Amazon is not merely hosting a bulletin board. Rather,
it pre-approves who can post on the Amazon site and also reviews each design before
it appears. In short, Amazon is doing more than making a machine available that
others can use to post information. And that becomes even more clear as to any
resulting sales. For such sales, Amazon sets the price, identifies itself as the seller,
handles manufacture and shipping, collects payment, and handles returns. (Doc. 84-
2, #10575–77; Doc. 86-1, #10916). Depending on what exactly those practices entail
behind the scenes, a reasonable jury could conclude that Amazon engages in
volitional conduct when it makes a sale through the Merch on Demand platform. That
is, a jury could conclude that Amazon is not merely a “passive provider of a space in
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which infringing activities happened to occur,” White, 766 F. Supp. 3d at 461, but
rather plays a larger role.
Consider a hypothetical. Amazon wants to claim it is merely the modern-day
equivalent of the print shops that made photocopiers available for public use back
when paper ruled everyday life. But suppose that such a shop decides to up its game
by offering the following service: when a customer copies an original, the shop keeps
an electronic copy; the shop also tells the customer that they can send other
individuals in to ask for reproductions; the shop then takes the further step of
displaying some of the pictures in the shop window with a “buy these here” sign
affixed, charging a price it alone sets; and if a passer-by purchases a copy, it then
pays a “royalty” to the person who made the original copy. The shop is no longer
passively providing a machine; it is taking a hands-on approach to moving product.
At some point it crossed the line into active involvement in the sale. That is, it
seemingly started acting with volition.
After all, at some level, many retailers are merely selling goods designed by
others. Department stores often play little role in designing most of the products that
appear on their shelves. But, if a department stores sells an infringing product, it is
on the hook. That is what strict liability means. Sure, that may seem to impose a
difficult 	burden 	on 	the 	store 	operator. 	How 	is 	he 	or 	she 	even 	to 	know 	that
infringement is occurring? Perhaps one response to that would simply be to include
warranties 	of 	non-infringement 	from 	suppliers 	coupled 	with 	indemnification
agreements in the event the supplier sells the retailer an infringing good. But, in any
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event, if copyright liability is to remain a strict liability cause of action, one cannot
read the volitional conduct doctrine as requiring a copyright owner to prove that the
infringing store operator should have known the goods they sold infringed on
someone’s copyright. Yet that is the tack that Amazon seems to take here.
Thus, the Court denies Amazon’s summary judgment motion for the direct
infringement claim.
2. 	Amazon Is Not Contributorily Liable.
The Court next addresses contributory liability. Of note, in Weekend Warrior’s
summary 	judgment 	motion, 	it 	barely 	states 	the 	standard 	for 	contributory
infringement, and it does not apply that standard here at all. (Doc. 66, #6856–57).
That matters. “[I]ssues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived. It is not sufficient for a party
to mention a possible argument in the most skeletal way, leaving the court to put
flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997). The
same is true for summary judgment arguments. See, e.g., Ricks v. Pauch, No. 17-
12784, 2020 WL 1640166, at *26 (E.D. Mich. Apr. 2, 2020) (relying on McPherson’s
perfunctory-argument-as-waiver rule to deny summary judgment); Becknell v. Univ.
of Ky., 383 F. Supp. 3d 743, 758 (E.D. Ky. 2019) (same). And “[s]keletal is a charitable
description of [Weekend Warrior’s] argument” on contributory infringement. Navarro
v. Procter & Gamble Co., 515 F. Supp. 3d 718, 778 (S.D. Ohio 2021). So if the Court
were not already denying summary judgment due to the originality issue, the Court
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would be compelled to deny it here anyway. But the Court will still explore whether
Amazon is entitled to summary judgment on this claim. Spoiler alert: it is.
Just this term, the Supreme Court addressed contributory infringement in Cox
Communications, Inc. v. Sony Music Entertainment, 146 S. Ct. 959 (2026). So Amazon
requested leave to file a notice of supplemental authority, which the Court granted,
and to which Weekend Warrior responded. (Docs. 94, 95, 97; 4/6/26 Not. Order). In
Cox Communications, Sony sued Cox Communications, an internet service provider,
for continuously providing internet access to known copyright infringers. 146 S. Ct.
at 964. The Supreme Court held that “[t]he provider of a service is contributorily
liable for the user’s infringement only if it intended that the provided service be used
for infringement.” Id. at 967. A copyright owner can establish such intent by either
showing (1) “the party induced the infringement,” or (2) “the provided service is
tailored to that infringement.” Id. (citations omitted). Expanding on the first, to
induce infringement the provider must “actively encourage[] infringement through
specific acts,” such as advertising the service’s infringement capabilities. Id. (citing
Grokster, 545 U.S. at 942). As for the second option, “[a] service is tailored to
infringement 	if 	it 	is 	‘not 	capable 	of 	‘substantial’ 	or 	‘commercially 	significant’
noninfringing uses.” Id. (quoting Grokster, 545 U.S at 942). The Supreme Court
expressly 	stated 	that 	“contributory 	liability 	cannot 	rest 	only 	on 	a 	provider’s
knowledge of infringement and insufficient action to prevent it.” Id. at 969 (citations
omitted).
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Here, the Court concludes as a matter of law that Amazon has not induced nor
tailored its service for infringement under the definitions of those terms laid out
above, so it cannot be contributorily liable. Weekend Warrior has not put forth any
evidence even suggesting that Amazon marketed or otherwise actively encouraged
third-party creators to use its service to create products based on copyrighted works.
And Merch on Demand is certainly capable of “substantial” and “commercially
significant” noninfringing uses. Id. at 967. Indeed, based on the record before the
Court, Weekend Warrior cannot reasonably argue that even a majority of Merch on
Demand products are infringing products. So the Court grants summary judgment in
favor of Amazon for this claim.
3. 	Amazon Could Be Vicariously Liable.
The final form of secondary liability available is vicarious liability. Like
contributory infringement, Weekend Warrior only states the legal standard and does
not attempt to apply it to the case at hand. (Doc. 66, #6857). So the Court considers
only whether Amazon is entitled to summary judgment in its favor. The Court
concludes it is not.
To establish vicarious liability, a plaintiff must establish two elements: (1) the
“right and ability to supervise the infringing conduct” of another, and (2) the
defendant’s “obvious and direct financial interest in the infringement.” Gordon v.
Nextel Commc’ns & Mullen Advert., Inc., 345 F.3d 922, 925 (6th Cir. 2003). The
financial benefit prong is straightforward. The question “is whether there is a causal
relationship between the infringing activity and any financial benefit a defendant
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reaps, regardless of how substantial the benefit is in proportion to a defendant’s
overall profits.” Perfect 10, 847 F.3d at 673 (quotation omitted). The financial benefit
“exists where the availability of infringing material acts as a draw for customers.” Id.
(quoting Ellison v. Robertson, 357 F.3d 1072, 1078 (9th Cir. 2004)). That entails a
direct 	financial 	benefit 	from 	the 	specific 	infringement 	at 	issue, 	not 	just 	the
defendant’s service generally. Id.
The first element merits more explanation. A defendant has the “right to
supervise” when it has the power “to stop or limit” the infringement. Broadcast Music,
Inc. v. Meadowlake, Ltd., 754 F.3d 353, 354 (6th Cir. 2014) (quoting Grokster, 545
U.S. at 930). That does not mean that the defendant must know of the infringement,
though. Id. at 355 (“A defendant’s ignorance about the infringement … does not blunt
vicarious liability.” (citation omitted)). Rather, the main issue is the degree of control
the defendant has. Vicarious liability arose as an “outgrowth of respondeat superior.”
Luvdarts, LLC v. AT&T Mobility, LLC, 710 F.3d 1068, 1071 (9th Cir. 2013) (quotation
omitted). Looking at vicarious liability in similar contexts, for example, in agency or
employment law, liability arises where the defendant exercises control over the
manner and means of the offending party’s employment. Wellman v. Montes, 288 F.
Supp. 2d 860, 864 (N.D. Ohio 2003) (citing Cmty. for Creative Non-Violence v. Reid,
490 U.S. 730, 751 (1989)). In that setting, courts hold the defendant liable because
the offending party’s actions were in some sense an extension of the defendant’s own
conduct. 	See 	Burlington 	Indus., 	Inc. 	v. 	Ellerth, 	524 	U.S. 	742, 	756–59 	(1998)
(explaining 	how 	agency 	law 	principles 	extend 	liability 	to 	an 	employer 	for 	an
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employee’s actions). That said, vicarious liability in copyright law is generally broader
because it includes “a defendant whose economic interests were intertwined with the
direct infringer’s, but who did not actually employ the direct infringer.” Fonovisa, Inc.
v. Cherry Auction, Inc., 76 F.3d 259, 262 (9th Cir. 1996).
But not all “intertwined” economic interests suffice. On one end of the
spectrum, in a series of cases commonly referred to as the “dance hall cases,” courts
held the operators of entertainment venues liable for infringing performances at their
business because the operator could control the material entertainers played at the
venue. See Shapiro, Berstein & Co. v. H. L. Green Co., 316 F.2d 304, 307 (2d Cir.
1963); Sony, 464 U.S. at 437 n.18 (outlining series of “dance hall cases” where owner
became vicariously liable when an orchestra hired to play music for the customers
performed a copyrighted work). But on the other end, in another line of cases referred
to 	as 	the 	“landlord-tenant 	cases,” 	courts 	determined 	that 	landlords 	were 	not
vicariously liable simply because their tenants committed copyright infringement on
the leased premises. Shapiro, 316 F.2d at 307 (citing Deutsch v. Arnold, 98 F.2d 686
(2d Cir. 1938)). The Shapiro court determined that the distinction between the two
lines of cases was that, in the dance hall cases, the employer “retained the ultimate
right of supervision over the conduct” of the direct infringers, id. at 308, whereas the
landlords in their eponymous line of cases typically did not retain that same right or
otherwise regularly police their tenants. Id. To the contrary, tenants have historically
enjoyed a right to quiet enjoyment that limits the extent to which landlords (among
others) can police goings on at the property. At bottom, it appears to be a question of
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right to control—vicarious liability arises when the defendant is the “primary
decision maker” who is “in charge of operating” the infringer’s business, and as such,
has the ability to directly police the infringing conduct. King Records, Inc. v. Bennett,
438 F. Supp. 2d 812, 852 (M.D. Tenn. 2006).
While the degree of control exerted is more obvious in the employment or
landlord contexts, the same principles apply to online platforms. The Ninth Circuit,
for example, evaluated Google’s liability for infringing images that appeared in its
search engine results (as well as Amazon’s results that incorporated Google’s search
engine). Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 730 (9th Cir. 2007). Third-
party websites displayed infringing copies of the plaintiff’s copyrighted images, and
sometimes when users searched on Google, the infringing images would appear. Id.
at 713. The Ninth Circuit focused on whether Google truly had the right and ability
to stop or limit the infringement on the third-party websites. Id. at 730. The court
noted that in Google’s AdSense agreement, it retained the “right to monitor and
terminate partnerships with entities that violate others’ copyright[s].” Id. (quotation
omitted). But that was not dispositive. The key consideration was the infringing
website’s ability to “continue to reproduce, display, and distribute its infringing copies
of [the plaintiff’s] images after its participation in the AdSense program has ended.”
Id. In other words, Google’s decision to terminate its partnership with the website
would not actually take down the infringing content because that copy existed on the
third-party website. Id. While Google may have some influence over the infringement,
it did not have sufficient control over the infringing activity for purposes of vicarious
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liability. Id. at 731; see also Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 803
(9th Cir. 2007) (holding credit card payment network not vicariously liable because
terminating 	partnership 	with 	member 	bank 	or 	merchant 	would 	not 	stop
infringement).
Here, Amazon argues it cannot be held vicariously liable both because it does
not have a respondeat superior-type relationship with the third-party content
creators and because it did not decline to limit infringement. (Doc. 73, #7144–49). For
Weekend Warrior’s part, though, it briefly contends that Amazon can and does control
“who can post on Merch, and what they can post,” as well as terminate any listings
or creator accounts. (Doc. 84, #10461). It also argues that Amazon derives a financial
benefit from the accused listings and related ad revenue. (Id.).
The Court agrees with Weekend Warrior that the vicarious infringement claim
can move forward. To start, Amazon clearly retained the right to supervise and stop
infringing activity on its website. Users must pass “multiple levels of review” when
they first apply for Content Creator accounts, and Amazon continues this supervision
as they post listings. (Doc. 86-1, #10910–11). If the creator survives that review, they
agree to Amazon’s Merch Services Agreement, which, among other things, states that
Amazon will suspend or terminate accounts for policy violations, including copyright
infringement. (Doc. 84-2, #10581–82). This review includes comparing the proposed
design to Amazon’s image database, containing “images [already] submitted by rights
holders to Amazon through a report infringement form.” (Id. at #10583). Even after
the product listing is publicly available, Amazon “conducts ongoing audits and
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inspections … to flag allegedly infringing content.” (Id.). If Amazon determines the
design contains infringing content, it can take down the listing or suspend and
terminate the account.
So at any point along the fulfillment process, Amazon could cease production
or distribution of the infringing product. From beginning to end, then, Amazon
maintains the “right to supervise” creator accounts and specific listings, and it has
the power to “stop or limit” that infringement at any time. Broadcast Music, 754 F.3d
at 354.
This set-up is not akin to the infringing images appearing in Google’s search
results. 487 F.3d at 730. There, even if Google terminated the ad partnership, the
infringing image would still exist. Id. Here, if Amazon takes down the listing, the
infringing product is completely gone; it is not for sale through any other company.
After all, the product only comes into being when a customer orders the online mock-
up and Amazon manufactures and delivers it.
Amazon also argues that it actively polices infringement, and so it did not
“decline to limit” the infringement. (Doc. 73, #7147–49). Admittedly, it takes some
steps to police the infringement, as just described. Despite that, its infringement
reporting tools leave much to be desired. Weekend Warrior’s experience shows that
Amazon effectively sticks its head in the sand to avoid knowledge of infringement—
or at the very least it did so in this case—and in that way, a jury could conclude that
it declines to limit infringement.
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Weekend Warrior, who recall holds actual registered copyrights in the designs
at issue (whose validity is admittedly, as noted above, still an open question),
contacted Amazon about pixel-for-pixel copies of those designs that appeared on
Amazon’s website. The Court won’t belabor the record about Amazon’s response to
those NOCIs beyond noting that it could best be described as dismal. Despite
providing all the information that Amazon requested, Amazon’s automated process
decided Tim Whelan’s contacts were “fraudulent,” and Amazon sent any ensuing
emails directly to the trash.
Sure, Amazon needs a process to weed out fraudulent reporters. Bad actors
have incentives to report competitors as copyright infringers to lessen competition,
and Amazon estimates that almost 	of all asserted infringements are
fraudulent. (Doc. 84-2, #10587–88). But, on the record here, the Court is not inclined
to say that, as a matter of law, the system Amazon adopted adequately polices
infringement. In saying that, the Court acknowledges that providing adequate review
of such reports, given their volume, may be resource intensive. But that is the cost of
operating 	a 	service 	where 	anyone 	can 	upload 	designs—a 	system 	ripe 	for
infringement. Overall, these significant flaws in its reporting system mean that a
jury could find that Amazon declines to limit infringement on its platform.
The Court so far has focused on the first prong regarding the right to supervise.
As for the second prong, Amazon clearly derives a financial benefit from sales of the
allegedly infringing products. Indeed, Amazon receives all payment from a customer
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and only remits a “royalty” to the original content creator. (Doc. 86-1, #10916).
Amazon does not meaningfully dispute this element.
In sum, Weekend Warrior’s vicarious liability claim may proceed. So the Court
denies summary judgment for Amazon on this third claim.
E. 	Amazon’s Motion for Partial Summary Judgment.
That leaves the five issues on which Amazon seeks partial summary judgment:
(1) invalidity as to the 21 allegedly derivative copyrights; (2) its Digital Millennium
Copyright Act (DMCA) defense as to any listings for which Amazon had no sales;
(3) its argument that Weekend Warrior cannot recover attorneys’ fees as to 22
copyrights; (4) its argument that Weekend Warrior cannot collect enhanced statutory
damages; and (5) its argument that the Court should grant summary judgment as to
five copyrights for various reasons. The Court takes them in order.
1. 	Derivative Works.
First, on the derivative works issue, the Court has already concluded that
genuine disputes of material fact pervade that issue, such that neither party is
entitled to summary judgment on it. So that ends that.
2. 	DMCA.
Next consider the DMCA. The DMCA provides an affirmative defense to
“service providers” who store information at the direction of a user, so long as certain
conditions are met. See 17 U.S.C. § 512(c). Amazon identifies seven such conditions:
(1) it must be a service provider (id. § 512(c)(1)); (2) the infringing material must be
user-directed storage (id.); (3) it must not have actual knowledge of infringement, and
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as soon as it gains such knowledge it must remove the material (id.); (4) it must not
have ability to control the infringing activity or gain direct financial benefit from it
(id.); (5) upon receipt of a DMCA-compliant removal notice, it must remove the
information 	(id.); 	(6) it 	must 	implement 	a 	reasonable 	repeat-infringer 	process
(17 U.S.C. 	§ 512(i)(1)(A)), 	and 	(7) it 	must 	appoint 	a 	DMCA 	agent
(17 U.S.C. § 512(c)(2)).
Weekend 	Warrior, 	for 	its 	part, 	does 	not 	quibble 	with 	Amazon’s
characterization of the necessary factors. Rather, it claims that many of them are
missing, or at least are not undisputedly present. Specifically, it points to the repeat-
infringer policy prong, the at-the-direction-of-a-user prong, the expeditious-removal
prong, and the ability-to-control prong.
The Court begins, and largely ends, its analysis of this defense with the repeat-
infringer policy prong. For Amazon to obtain summary judgment, the record evidence
must unequivocally establish that Amazon has “reasonably implemented” a repeat-
infringer policy. Exactly what such a showing would entail is not entirely clear. But
precedent suggests at least one fact that precludes a court from awarding summary
judgment to a service provider on this ground—if a service provider “allow[s] notices
of potential copyright infringement to fall into a vacuum and to go unheeded, that
fact is sufficient for a reasonable jury to conclude that [a service provider] has not
reasonably implemented its policy against repeat infringers.” Ellison 357 F. 3d at
1080. Here, for the reasons already discussed in connection with vicarious liability, a
reasonable jury could conclude that Amazon allowed Tim Whelan’s NOCIs to “fall
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into a vacuum and go unheeded,” and thus could likewise conclude that Amazon had
not reasonably implemented a repeat infringer policy. Id. at 1080. So the Court
declines to award Amazon summary judgment on this defense.
3. 	Attorneys’ Fees.
Third, turn to the question of attorneys’ fees. Amazon does not argue that, as
a matter of law, Weekend Warrior cannot recover attorneys’ fees at all. Rather, it
claims that Weekend Warrior cannot recover such fees as to 22 of the asserted
copyrights because they were not registered within three months of publication. That
may be so, but the Court declines to parse the details of potential future attorneys’
fees awards before a jury has even decided whether Weekend Warrior prevails as to
one or more of those 22 copyrights (or any of the other asserted copyrights). Courts
typically address the contours of attorneys’ fees in post-trial motions, and the Court
sees no reason to deviate from that practice here. E.g., Miller v. Fed. Elections
Comm’n, No. 1:12-cv-242, 2013 WL 4243044, at *5 (S.D. Ohio Aug. 15, 2013) (“The
Court ordinarily does not determine whether a plaintiff is entitled to attorney fees
and costs as the prevailing party as part of the adjudication of the defendant’s motion
for summary judgment. Rather, the Court resolves attorney fees issues upon motion
after the adjudication of the case on the merits.”).
4. 	Willfulness.
Turn next to enhanced statutory damages. Amazon presses two arguments in
this category. First, it points to the timing issue above as to the 22 designs for which
Weekend Warrior did not timely seek registration. Weekend Warrior concedes it
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cannot obtain statutory damages as to those copyrights. Second, Amazon says it is
entitled to partial summary judgment that it did not willfully infringe on Weekend
Warrior’s copyrights. Weekend Warrior, for its part, says that just the opposite is
true—that the record unequivocally shows that Amazon willfully infringed its
copyright. 16 (Doc. 66, #6862–65). On the willfulness issue, the Court concludes that
neither party is correct.
The defendant’s mental state is relevant for statutory damages. The Copyright
Act provides that:
In a case where the copyright owner sustains the burden of proving, and
the court finds, that infringement was committed willfully, the court in
its discretion may increase the award of statutory damages to a sum of
not more than $150,000. In a case where the infringer sustains the
burden of proving, and the court finds, that such infringer was not aware
and had no reason to believe that his or her acts constituted an
infringement of copyright, the court in its discretion may reduce the
award of statutory damages to a sum of not less than $200.
17 U.S.C. § 504(c)(2). “Infringement is willful when the infringer has knowledge
that … his conduct constitutes copyright infringement.” Calibrated Success, 72 F.
Supp. 3d at 775. “Knowledge may be either actual or constructive. To prove
constructive knowledge, courts have generally required the copyright owner to show
that the infringer has acted in reckless disregard of the copyright owner’s right.” Id.
(quotation omitted). Additionally, “a plaintiff can prove willfulness by showing that
the defendant exhibited willful blindness to the copyright owner’s rights. Willful
blindness is defined as a deliberate effort to avoid guilty knowledge.” Id. (citing In re
16 Of course, the Court already found that there were genuine disputes about whether
infringement occurred at all, so that precludes summary judgment in Weekend Warrior’s
favor on this issue.
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Aimster Copyright Litig., 334 F.3d 643, 650 (7th Cir. 2003)). Similarly, “[r]eckless
disregard can be demonstrated, for example, when a party ‘refus[es], as a matter of
policy, to even investigate or attempt to determine whether particular [photos] are
subject to copyright protections.’” VHT, Inc., 918 F.3d at 748 (quoting Unicolors, Inc.
v. Urban Outfitters, Inc., 853 F.3d 980, 992 (9th Cir. 2017)). On the other hand,
“continued use of a work even after one has been notified of his or her alleged
infringement does not constitute willfulness so long as one believes reasonably, and
in good faith, that he or she is not infringing.” Id. (citation modified).
The current record does not unequivocally prove either that Amazon acted, or
did not act, willfully. Assuming that Amazon is vicariously liable, many of the same
facts supporting that claim could also support a finding that Amazon “exhibited
willful blindness” or other “reckless disregard” for Weekend Warrior’s copyrights.
Calibrated Success, 72 F. Supp. 3d at 775; VHT, 918 F.3d at 748. Amazon’s
determination that Tim’s submission was fraudulent and subsequent blocklisting had
little to do with whether Tim was a legitimate rights holder. The same is true for
whether the designs on Amazon’s website infringed Tim’s purported copyright.
Amazon may wish to deny actual or constructive knowledge because it did not review
these reports. But that was by its own design. It would be odd for the Court to hold
that Amazon can construct a system where it automatically disposes of infringement
reports and then claims it had no knowledge of the alleged infringement from those
reports. Accordingly, the Court concludes that a reasonable jury could find that
Amazon’s conduct here amounts to willful blindness for purposes of statutory
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damages. So the Court will not grant summary judgment for Amazon on this issue
either.
5. 	Defenses to Five Specific Copyrights.
That leaves the five copyrights as to which Amazon has specific defenses. These
copyrights fall into two categories. First are three copyrights (King of the Kill, St.
PatRizz Day, and Down Goes Liver) that Weekend Warrior did not list in its operative
complaint. Second are two copyrights (Ameri-CAN v2 and Shut-Up Liver) as to which
Amazon says no infringing listings have been identified. Start with two easy ones.
First, in its opposition brief, Weekend Warrior concedes it is “not currently assert[ing]
claims for infringement of Down Goes Liver.” (Doc 84, #10501). Second, it also
concedes it is not aware of any Amazon listings that depict the Ameri-CAN v2 design.
(Id. at #10501–502). So the Court dismisses claims involving those copyrights, but
without prejudice.
The other three are a little more difficult. King of the Kill and St. PatRizz Day
were listed in the operative complaint. But at the time Weekend Warrior filed it,
Weekend Warrior had not yet registered those works. The operative complaint noted,
though, that Weekend Warrior was seeking such registration. And when it later
obtained those registrations, it sent them to Amazon. Amazon, for its part, produced
sales figures and images showing allegedly infringing Amazon products bearing these
designs. Accordingly, Weekend Warrior seeks leave under Federal Rule of Civil
Procedure 15(b)(2) to add these two designs.
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But Amazon claims that would unfairly prejudice it. The Court disagrees. The
Court is bound to “freely give leave [to amend] when justice so requires.” Fed. R. Civ.
P. 15(a)(2). Here, as noted, the parties have largely treated the designs as part of this
case since Weekend Warrior sent the registrations. True, Amazon instructed its
expert not to examine these two designs, and it apparently declined to ask Tim
Whelan about the designs as this deposition, but that strikes the Court as more an
effort to manufacture a claim of unfair surprise than anything else. There is no
evidence that there has been “undue delay,” that Weekend Warrior acted with “bad
faith or dilatory motive” or that amendment would be futile. Pedreira v. Ky. Baptist
Homes for Children, Inc., 579 F.3d 722, 729 (6th Cir. 2009) (quoting Prater v. Ohio
Educ. Ass’n, 505 F3d 437, 445 (6th Cir. 2007)). So the Court will allow claims based
on those two designs to proceed. That said, if Amazon wants to re-depose Tim Whelan
on those two designs (and only those two designs) it may. And the Court will also
allow it to supplement its expert report to address those two designs, should it wish.
Finally, as to the Shut-Up Liver design, Weekend Warrior says that its failure
to identify specific Amazon product listing was due to it mixing up the Shut-Up Liver
and Down Goes Liver designs. That error, while regrettable, is perhaps not altogether
surprising given the number of designs and product listings at issue in this case.
Moreover, Amazon has known about the design itself since the outset of the case.
Accordingly, the Court will allow Weekend Warrior to supplement its list of Amazon
product listings with the eleven additional product numbers it identifies in its
opposition brief relating to this design. (Doc 84, #10502).
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CONCLUSION
For the reasons discussed above, the Court '(1,(6 Amazon’s Motion for
Summary Judgment (Doc. 68) on the direct and YLFDULRXV infringement claims
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UDLVHG H[FHSW IRU LWV VSHFLILF GHIHQVH WR WKH $PHUL&$1 Y DQG 'RZQ *RHV /LYHU
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FODLPVLQYROYLQJWKRVHVSHFLILFFRS\ULJKWVFurther, 	the 	Court 	DENIES 	Weekend
Warrior’s 	Motion 	for 	Summary Judgment (Doc. 66) in full.
SO ORDERED.
October 14, 2026
DATE 	DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE
UGLAS R. COLE
ITED STATES DISTRICT	CT	C	C	C	C	CT	CT	CT	CT	CT	C	CT	T	T	T	T	CT	T	T	T	T	CT	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T	T
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