Keeping Tabs on the Ninth Circuit
June 09, 2023 - This Week at the Ninth

This Week At The Ninth: Too $hort And Compilation Damages


This week, the Court addresses whether offensive music can create a hostile work environment and considers when individual photos in a database constitute a “compilation” for purposes of copyright infringement damages.


The Court holds that playing sexually derogatory music in a workplace may constitute sexual harassment, even if all employees are exposed to the music and both men and women find the content offensive.

The panel: Judges McKeown, Bybee, and Bumatay, with Judge McKeown writing the opinion.

Key highlight: “It is beyond our purview to pass judgment on the appropriateness of music in the workplace writ large. Nor is it our objective to ascribe misogyny to any particular musical genre. Our resolution is more modest: we conclude that the district court erred in dismissing Sharp’s sex-based discrimination claim as ‘fatally flawed.’”

Background: Plaintiffs, eight former employees of the apparel manufacturing company S&S Activewear, had worked in a warehouse in which S&S placed commercial-strength speakers and permitted managers and employees to play music. Some employees played songs that plaintiffs—seven women and one man—allegedly found offensive, including “Blowjob Betty” by Too $hort and “Stan” by Eminem. Plaintiffs alleged that the music in the warehouse “denigrated women and used offensive terms,” “glorified prostitution,” and “described extreme violence,” and that they found it nearly impossible to avoid the music. Plaintiffs claimed that S&S management received frequent complaints about the obscene music but refused to intervene. 

Plaintiffs sued, alleging a Title VII sexual harassment claim. The district court granted S&S’s motion to dismiss the claim with prejudice. It described plaintiffs’ claim as “fatally flawed” because plaintiffs never alleged “that any employee or group of employees were targeted, or that one individual or group was subjected to treatment that another group was not.” The court reasoned that conduct that offends both men and women does not constitute sex-based discrimination.

Result: The Ninth Circuit vacated the district court’s decision, holding that audible sexually derogatory music can create a hostile work environment under Title VII. Because the district court had applied an erroneous legal standard, the Ninth Circuit remanded so that it could reevaluate the sufficiency of plaintiffs’ complaint. 

First, the Ninth Circuit held, plaintiffs did not need to allege that S&S targeted particular employees for the conduct to create a hostile work environment: “targeting a specific person is not a prerequisite for a viable claim under Title VII.”  Instead, the Court explained, gendered epithets and sexually derogatory music may violate Title VII by “polluting” a workplace with insult, intimidation, or sexual harassment. Thus, plaintiffs’ allegation of “repeated and prolonged exposure to sexually foul and abusive music” “falls within a broader category of actionable, auditory harassment.”

Second, the Court clarified that even if the music offended both men and women, it could still violate Title VII, and the male plaintiff could bring his hostile work environment claims alongside the seven female plaintiffs. The Court reasoned that male and female employees might be offended by sexual harassment in unique ways. Moreover, the Court noted that crediting S&S’s “equal opportunity harasser defense” would be inconsistent with Title VII’s policy goals: an employer cannot avoid liability by creating a universally hostile work environment. The Court therefore held that the music’s alleged offensiveness to both men and women did not preclude a Title VII claim. 

The Court holds that each of a plaintiff’s photos in a database was a separate infringed work, not merely part of a single compilation.

The panel: Judges McKeown, Fletcher, and Gould, with Judge McKeown writing the opinion.

Key highlight: “Although the Copyright Act states that ‘all parts of a compilation constitute one work, it does not say that any work included in a compilation cannot also exist as a separate, independent work.” (quotation marks, alterations, and citation omitted)

Background: Plaintiff VHT, Inc. (“VHT”) is a real estate photography studio that photographs properties for marketing purposes on behalf of listing agents and brokers. Defendant Zillow Group, Inc. (“Zillow”), an online real estate marketplace, used VHT’s photos on its website in multiple ways. One of those ways was under a webpage called “Digs,” which featured searchable photos of “artfully-designed rooms” for purposes of “home improvement and remodeling.” VHT sued Zillow for copyright infringement, including of 2,700 photos displayed on “Digs.” 

After trial, the district court entered judgment for VHT, and the Ninth Circuit affirmed in part and vacated in part. As relevant here, the Court held that Zillow was liable for its addition of a searchable feature to the photos on the “Digs” webpage. It remanded for the district court to reconsider statutory damages and to address whether VHT’s photos used on “Digs” were each individual infringed works or part of a compilation. If VHT’s photos were part of a compilation, it would be entitled to only a single award of statutory damages, which could range from $750 to $30,000. If the photos were each individual works, VHT would be entitled to statutory damages for each of the 2,700 photos.

On remand, the district court held, among other things, that VHT’s photos were not a compilation, but 2,700 individual works. The court awarded $800 each for 2,312 photos that were willfully infringed and $200 each for 388 photos that were innocently infringed.

Result: The Ninth Circuit affirmed. A “compilation” is defined as “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” 17 U.S.C. § 101. In this case, VHT’s photos were part of a database, and VHT owned a copyright in both the database and the individual photos. The Ninth Circuit recognized that the database was registered with the Copyright Office as a compilation, but it declined to make the form of registration dispositive. Instead, it concluded that the photos were individual works because each had independent economic value that was infringed by Zillow. The Court reasoned that the photos were licensed and published to a listing agent or broker on an individual basis, and Zillow infringed the individual photos, not the database’s selection, coordination, or arrangement of those photos. 

The Ninth Circuit also used the opportunity to clarify confusion about its earlier precedent, Alaska Stock, LLC v. Houghton Mifflin Harcourt Publishing Co., 747 F.3d 673 (9th Cir. 2014). That case had held that a stock photo agency registering a database had successfully registered a copyright in both the database and the individual images within the database. Language in the opinion had referred to the database as a “collective work.” Citing Alaska Stock, the Copyright Office then stated that a photographic database was a compilation by definition and thus could serve as the basis of only one award of statutory damages. The Ninth Circuit clarified that Alaska Stock had not intended to reach such a conclusion. It noted that Alaska Stock used the term “collective work” in the context of registration, not statutory damages. It also explained that limiting recovery to a single award of statutory damages would undermine the rationale of Alaska Stock, which had sought to benefit photographers and stock agencies.