DRK Photo Agency Not Allowed to Sue McGraw-Hill

On Tuesday, September 12, 2017, the Ninth Circuit in New York City, New York ruled that a stock image agency could not sue publishing company McGraw-Hill for using images without its permission in textbooks. The court’s reasoning was that the group had agreements with photographers that didn’t give it an actual reason to sue.

The panel of three judges acknowledged that situations such as this one are very frequently brought to litigation but lack a clear answer As a result, they came to the conclusion that the assignment agreements DRK Photos inked with photographers only gave the agency the very barest right to bring about a lawsuit, which doesn’t make the agency the legal owner of copyright over the photos.

It means that DRK Photos did not have the standing to file a suit against McGraw-Hill. It accused the publishing company of printing and distributing textbooks that include more licensed images than it was authorized to do so.

United States Circuit Judge Michael D. Hawkins wrote that, although the court was sympathetic to the variety of challenges that come into play to protect against infringement of photo art in the publishing industry, those same considerations do not override the provisions that grant the owner the right to sue per the Copyright Act.

DRK Photos is a company based in Arizona. It licenses hundreds of thousands of stock wildlife and natural history photos to publishers, including McGraw-Hill. DRK sued the publishing giant in 2012, claiming that it greatly exceeded the extent of their license deal by printing 636 photos 1,120 times, which was unauthorized.

On top of the assignment agreements, DRK also had photographers sign what are known as “representation agreements” that grant the agency the right to use their photos. At the Ninth Circuit Court, DRK Photos argued that the agreements with photographers would give it the right to sue McGraw-Hill for copyright infringement.

However, the representation agreements were not exclusive, which means they did not give DRK any standing to sue the publishing company on behalf of the photographers.

After the ruling, the legal counsel for McGraw-Hill, Christopher P. Beall, reportedly said that the publishing company was “pleased” with the decision of the court that only agencies with exclusive licenses have a standing to sue, which is a requirement he called a “careful balancing of the copyright interests involved in a case like this.”

Beall added that the court’s decision provides a better degree of predictability in such situations when photographers have licensed their images to a variety of photo agencies and have not detailed which of those agencies has exclusive rights, which also doesn’t make it clear which one has the standing to sue.

A lawyer representing DRK Photos did not reply to a request for comments. The agency is represented by a team of attorneys, specifically by Maurice Harmon, Christopher Seidman and Gregory N. Albright of Harmon Seidman Bruss and Kerr LLC.

McGraw-Hill is represented by Beall, who is from Fox Rothschild LLP.

The case, DRK Photos v. McGraw-Hill Global Education, et al., is marked as case number 15-15106. It was heard at the U.S. Court of Appeals for the Ninth Circuit.