United States District Court, D. Colorado
RAYMOND P. MOORE United States District Judge
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.
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”).
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.)
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.
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).
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
Defendants' Motion for Partial Summary Judgment
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.
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.) ...