Background
Roxana Russell is a sculptural artist and lamp designer based in Pasadena, California, who sells original pendant lamps through her company Roxy Russell Design. She holds copyright registrations in both her lamp designs and in professional photographs she took of those lamps for her catalog.
Walmart operates a marketplace on Walmart.com that includes a “drop-ship vendor” (DSV) program, in which third-party merchants list and ship products while Walmart acts as the storefront. A DSV called Sunsea Grocery listed knock-off versions of Russell’s lamp designs on Walmart.com using her own copyrighted photographs — all without her permission. The product listings appeared under the Walmart brand, with the pages stating the items were “sold & shipped by Walmart.”
Russell sued Walmart for copyright infringement. A jury found Walmart liable for infringing both the lamp designs and the photographs and awarded $75,000 in statutory damages. Walmart appealed the photograph portion of the verdict. On June 18, 2025, a divided Ninth Circuit panel affirmed liability for the lamp designs but vacated the damages award for the photographs. Russell petitioned the Supreme Court to restore the full verdict. The Court declined on April 20, 2026.
The Court’s Holding
The central issue in the Ninth Circuit was whether Walmart was directly liable for infringing Russell’s copyrighted photographs under the “volitional conduct” test — a doctrine requiring a showing that the defendant took an active, volitional role in causing the infringement, rather than merely providing the platform on which it occurred.
On the lamp designs, the court found sufficient volitional conduct: Walmart controlled the transaction by listing items under its own name, designating the shipping carrier, handling returns, and taking title during transit. That degree of control meant Walmart itself, not just the DSV, was the infringer of the sculptures.
On the photographs, the court reached the opposite conclusion. Russell had not shown that Walmart itself selected, uploaded, or approved the specific copyrighted images that appeared on the product pages. Those images were uploaded by Sunsea, the DSV. Walmart merely provided the online infrastructure onto which Sunsea posted the infringing content — conduct the court found insufficient for direct liability under the volitional conduct test.
Russell’s cert petition argued that the Ninth Circuit improperly reweighed the evidence from trial, noting that Walmart had never filed a motion for judgment as a matter of law after the verdict on the photographs. She contended that appellate reversal of a jury verdict requires more deference to the factfinder, and that the Ninth Circuit applied the wrong standard of review. The Supreme Court’s denial of certiorari leaves the Ninth Circuit’s volitional conduct framework in place without national resolution.
Key Takeaways
- Online marketplaces are not automatically liable for infringing content uploaded by third-party sellers — even when the platform’s branding appears on the product listing and the platform controls other aspects of the sale.
- Under the Ninth Circuit’s volitional conduct test, direct copyright liability turns on whether the platform itself made the specific decision to use the copyrighted work, not merely whether it provided infrastructure that enabled infringement.
- Copyright owners on retail marketplaces face an uphill battle proving that the platform (rather than the third-party seller) is liable for the infringing images on product listings.
- The Supreme Court’s cert denial leaves unresolved a circuit split on the volitional conduct test and how it applies to modern online marketplaces — creators and platforms alike face continued uncertainty.
Why It Matters
This case sits at the intersection of two growing problems for independent creators: knock-off products sold on major marketplaces, and the unauthorized use of creators’ own product photographs to sell those knock-offs. The law on platform liability has not kept pace with the reality that today’s e-commerce giants exercise significant control over product listings while simultaneously claiming the protections available to passive hosts.
By leaving the Ninth Circuit ruling in place, the Supreme Court passed on an opportunity to clarify when a marketplace’s control over a transaction crosses the line into copyright responsibility. For artists and photographers whose work ends up on major retail sites without permission, the volitional conduct test remains a significant obstacle to recovery — even when the platform looks, to the consumer, like the seller.