Harrington v. McGraw-Hill Global Education Holdings, LLC

          ORDER

          RAYMOND P. MOORE United States District Judge

         This matter is before the Court on Defendants' Motion for Partial Summary Judgment (ECF No. 52) and Plaintiff's Motion for Partial Summary Judgment (ECF No. 70). Both motions have been fully briefed. (ECF Nos. 59, 63, 77, 84, 87, 91.) For the reasons that follow, Defendants' motion is granted in part and denied in part, and Plaintiff's motion is denied.

         I. BACKGROUND

         Defendants publish textbooks and educational products. Plaintiff is a photographer alleging that Defendants made unauthorized use of his photos. The fifty-one photos originally at issue in this case are presented with his complaint at Exhibit 1, Rows 1 through 41; and Exhibit 2, Rows 1 through 10. (ECF Nos. 1-1, 1-2.) Defendants licensed Plaintiff's photos either directly from Plaintiff or through stock photo agencies, including Corbis Corporation (“Corbis”).

         The licenses negotiated between Defendants and Corbis were governed, in part, by Preferred Pricing Agreements (“PPAs”), which listed prices for a range of uses of a photo. Corbis gave Defendants access to its stock photo collection, and once they decided to use a photo, they would send an invoice request to Corbis, “typically including the anticipated print run, geographic distribution, language(s), and format(s) of the textbook that would likely contain the selected photo.” (ECF No. 52 at 4.) Corbis would then issue an invoice stating the scope of the license for that photo. But according to Defendants, “the invoices alone did not control [their] permission to use the images.” (Id.) Rather, the parties had developed “understandings” during their years of doing business together such that “sometimes the invoice requests were sent after the initial publication, ” and if Defendants exceeded the use they initially paid for, they “could be required to make an additional payment, if Corbis so requested.” (Id.)

         II. LEGAL STANDARDS

         Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gutteridge v. Oklahoma, 878 F.3d 1233, 1238 (10th Cir. 2018). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). “The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Scott v. Harris, 550 U.S. 372, 380 (2007) (citation omitted). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248.

         When a court is presented with cross-motions for summary judgment, it “must view each motion separately, in the light most favorable to the non-moving party, and draw all reasonable inferences in that party's favor.” United States v. Supreme Court of New Mexico, 839 F.3d 888, 906-07 (10th Cir. 2016) (quotation omitted). “Cross motions for summary judgment are to be treated separately; the denial of one does not require the grant of another.” Id. at 907 (quotation omitted).

         III. ANALYSIS

         “To establish copyright infringement, a plaintiff must prove (1) ownership of a valid copyright and (2) unauthorized copying of constituent elements of the work that are original.” Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir. 2005). “A licensee infringes the owner's copyright if its use exceeds the scope of its license.” S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087 (9th Cir. 1989). Plaintiff alleges a quintessential copyright claim: that Defendants' use of his photos exceeded the scope of whatever licenses it had to use them.

         A. Defendants' Motion for Partial Summary Judgment

         Defendants contend they are entitled to summary judgment with respect to forty-six of Plaintiff's fifty-one claims. Plaintiff concedes that he has not alleged damages for thirty-one of them. (ECF No. 59 at 3.) Therefore, partial summary judgment in Defendants' favor on those claims is appropriate. That leaves twenty claims at issue: Exhibit 1, Rows 1, 4, 5, 7, 10, 11, 31, 34, 35, 37, 39, and 41; and Exhibit 2, Rows 1, 2, 4, 5, 6, 7, 8, and 9.

         1. “Undisputed” Claims

         Defendants argue there is no genuine issue that they did not exceed their licensed use with respect to eight of the claims still at issue. In support of granting judgment on four of these claims, Defendants cite facts from the Statement of Undisputed Material Facts (“SUMF”) that are indeed undisputed by Plaintiff. (ECF No. 64 at ¶¶ 40, 41, 43, 45, 48, 49.) In his opposition to Defendant's motion, Plaintiff does not offer any argument that genuine issues of material fact exist with respect to these claims. (ECF No. 59 at 3.) ...