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Court refuses to dismiss photographer’s copyright claims

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

At our law firm, we represent photographers and other creative artists in a variety of copyright matters, including negotiating, drafting and reviewing licenses for use of copyrighted materials. We also bring and defend copyright infringement suits.

On January 4, a U.S. District Court judge in the Northern District of California denied publisher Scholastic, Inc., request to dismiss some of the copyright infringement claims in a suit brought by Peter Menzel, a photographer who had previously licensed some of his work for use by Scholastic.

Menzel alleged that Scholastic’s use of his pictures exceeded the parameters and limits agreed to in the parties’ licensing agreement, thereby resulting in infringement of his copyrights in the photos. For example, he alleged:

  • Scholastic used some pictures in publications outside those approved in the licenses.
  • Scholastic used some photos after their licenses had expired.
  • Some photographs appeared digitally online when they had only been approved for reproduction on paper.
  • Some pictures were likely printed in more copies of books than were licensed.

Judge’s reasoning

The plaintiff argued that his explanations of infringement involving about one-third of the pictures out of about 40 was enough to “sustain claims of copyright infringement on all 40 or so photographs” because of a “pattern and practice” of infringement as shown in the judgment in and evidence found in another infringement case against Scholastic. In addition, Scholastic was sued in 13 other cases for infringement, even though those cases either settled or are still pending.

The judge agreed that the allegations involving the 14 pictures and the pattern of the other infringement cases having been filed or settled supported the plausibility of Menzel’s claims. Specifically, he said that the infringement allegations explained in the one-third of the pictures were “enough to imply a possible pattern of practice.”

Menzel also argued that while he had licensed certain pictures for use in 40,000 copies of particular books, because these books were annual publications and in 2006, 315,000 were published, it is likely that more than 40,000 copies were published in the years at issue. The court agreed, noting that this is “enough to make a plausible infringement claim,” so dismissal would not be proper.

On these bases, the court did not grant dismissal of the infringement claims Scholastic had requested and the case can proceed to trial.


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