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A lesson from another photo copyright claim against Scholastic

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.

In January, we wrote about a copyright infringement case in the U.S. District Court in the Northern District of California that survived a motion to dismiss some of the claims because the court found that the photographer-plaintiff Peter Menzel alleged facts sufficient to allow his case against publisher Scholastic to proceed to trial. As we explained, the photographer alleged that Scholastic's use of his pictures exceeded the limits of a license the photographer had granted to the publisher.

Menzel's copyright infringement complaint contained specific details about how he believed the license had been violated. He provided allegations about the uses of pictures not covered by the license, the reproduction of some photos after license expiration, their publication online when only licensed for paper use and their reproduction more times than licensed.

The judge added that that alleging specific details of misuse of about one-third of the pictures at issue was enough to "imply a possible pattern of practice." He also felt that Menzel's holding out other, similar lawsuits filed against Scholastic with similar allegations also supported Menzel's assertions of a pattern of behavior. The court agreed with the plaintiff that looking at the number of copies of an annual publication in one year makes it likely that similar numbers were published in other, specific years in which Menzel had licensed a much lower number of copies to Scholastic.

Dismissal of similar New York case against Scholastic affirmed on appeal

Another photographer's copyright infringement claim based on license violation against Scholastic has gone the other way. On August 28, the U.S. Court of Appeals for the 2nd Circuit affirmed the dismissal of that infringement lawsuit by the U.S. District Court for the Southern District of New York.

This case is the other side of the same coin as the California case. Here, the appeals court said that the plaintiff-photographer, Michael Yamashita, had not sufficiently alleged facts to support his claim. The court explained that when "only the scope of the licenses is at issue, the copyright owner bears the burden of proving that the defendant's copying was unauthorized" and that this analysis is like a breach of contract case.

The court noted that the photographer had not included in his complaint the answers to these questions:

  • What were the uses allowed by and limits of the license?
  • How did Scholastic violate the terms of the license?

Instead, the photographer alleged a variety of license violations that "might" have occurred, but no precise allegation that paired a specific photo use with a license provision that Scholastic allegedly violated. The court concluded that the complaint is "fairly characterized as no more than a collection of speculative claims based on suspicion alone." The complaint needed "more flesh on the bones."

In contrast to the California court, this court did not find evidence of other, similar cases against Scholastic helpful, because in those cases facts that could support infringement were sufficiently alleged.


These cases underscore the importance in a copyright infringement case based on violation of a license that the plaintiff-copyright owner present to the court detailed allegations of the license provisions along with violations of specific terms.

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