By George Basharis, J.D.
A photographer claiming that an oral agreement limited the use of copyrighted photos to non-commercial purposes was not entitled to summary judgment.
A photographer who claimed that Syracuse University’s use of photos on a billboard violated his copyright has been denied summary judgment in his favor by the federal district court in Binghamton, New York. The photographer was aware that the photographs were being used on the billboard but failed to act for months. Consequently, the court found that genuine issues of fact existed as to whether the university had an implied license to use the photographs for commercial purposes and whether the photographer’s copyright claims were waived or subject to equitable and other affirmative defenses (Bass v. Syracuse University, August 24, 2020, McAvoy, T.).
The photographs in dispute depicted Syracuse University men’s basketball players. Syracuse University had permission to use the photographs, although the scope of that permission was disputed. According to the photographer, the parties agreed orally that the photographs would be used by Syracuse only on social media accounts for noncommercial purposes. Syracuse disputed the photographer’s limited-use claims and insisted that it told the photographer that in exchange for a flat fee the photographs would be used for many promotional purposes, including billboards and other visuals.
Syracuse used the photographs in social media postings and on a billboard that was in place from October 2018 to the middle of January 2019. The photographer was aware of the billboard and even sent an email to a Syracuse employee in which he expressed pleasure that the photos were displayed to the public. But in March 2019, he emailed the university again to express concern that the billboard exceeded the scope of the parties’ agreement. The lawsuit was filed in May.
The photographer moved for summary judgment on his copyright infringement claim and on the university’s affirmative defenses of waiver, equitable estoppel, and ratification. The court refused to grant the motion.
Copyright infringement. The parties agreed that some sort of license existed, although whether an oral agreement limited the scope of the license to social media postings was not established. Syracuse contended that even if restrictions were in place on the use of the photographs, the photographer granted the university an implied license to use the photos on its billboard by not objecting to the billboard for months after seeing it. The court agreed that a reasonable juror could conclude that the photographer’s failure to object and his email to Syracuse administrators in which he mentioned the billboard approvingly implied that he had granted permission to the university to use the photographs on the billboard.
Affirmative defenses. The court also found that evidence existed that the photographer waived any limitation on the scope of the license by his response to the billboard. The photographer’s response could further support claims of equitable estoppel. The court reiterated that according to the evidence, the photographer knew of the alleged infringement for months but did not complain and that his inaction caused the university to keep the billboard up for month without knowledge that it could be the source of infringement. Additionally, the photographer’s approving email to the university could support a finding by a jury that the photographer ratified the use of the photographs on the billboard.
This case is No. 5:19-cv-00566-TJM-ATB.
Attorneys: Richard P. Liebowitz (Liebowitz Law Firm, PLLC) for James Bas. John D. Cook (Barclay Damon LLP) for Syracuse University.
Companies: Syracuse University
MainStory: TopStory Copyright GCNNews NewYorkNews
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