I’ve been writing for some time (recursive link) about numerous lawsuits between photographers, or their agencies, and textbook publishers that have used photographs in excess of what they originally licensed for their books. Mostly I’ve been writing about challenges to standing, which are early in the cases on a motion to dismiss.
But some of the cases have gone further, one of which is Grant Heilman Photography, Inc. v. McGraw-Hill Companies. The “bellwether trial,” as described by the court, is currently scheduled for September 15, 2014. And if you read one opinion about these photography cases, read this one.
There are several issues the court writes about, and does it so well that you are better off just reading the opinion rather than any summary I can write. There are three agreements between the photographers and the agency, one of which is adequate for standing and one that is not. The court gives us some insight into how the industry operates and a thorough, heavily cited, explanation of when there is an implied license to use photographs, meaning that the textbook publisher only has to pay the ordinary licensing fee, and when there is not, meaning that the textbook publisher is an infringer and subject to copyright damages.
And finally, the case shows how churlish McGraw-Hill is. McGraw-Hill raises a statute of limitations defense based on the theory that it was so obviously a wrongdoer for so many years that the plaintiff was on inquiry notice of the infringement, and therefore its claims were barred. I can’t fault anyone for raising a legitimate defense, but I wonder how many bridges the textbook industry is burning with all these cases.
Grant Heilman Photography, Inc. v. McGraw-Hill Companies, No. 12-2061 (E.D. Pa. June 26, 2014).
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