Stock Photo Agency Can Go After McGraw-Hill

(CN) - Grant Heilman Photography can advance claims that McGraw-Hill infringed more than 2,300 copyrighted photographs, a federal judge ruled.

The stock photo agency licensed nearly 2,400 photographs to the McGraw-Hill Cos. for use in their educational textbooks between 1995 and 2011.

McGraw Hill says Grant Heilman had enough information to excite "storm warnings" of allegedly culpable activity based on prior incidents. First, it sent an unsolicited check of more than $39,000 in August 2006, and a year later it requested license and invoicing adjustments.

Heilman sued McGraw and 10 unnamed printers for multiple counts of copyright infringement in April 2012.

The agency has waged similar battles in the past. In 2008, Heilman filed a class action for copyright infringement against Houghton Mifflin Harcourt.

McGraw moved for partial summary judgment on statute of limitations grounds, but U.S. District Judge Michael Baylson denied the motion Wednesday.

Though Heilman claimed that the statute of limitations was unclear because the complaint did not allege specific dates of infringement, Baylson said there is a strong indication "that some - and likely a large percentage - of the infringing acts took place prior to the alleged storm warnings."

Ultimately, however, McGraw failed to show that its "storm warnings" were "sufficiently obvious to place any reasonable copyright holder on notice that other infringing activity might be afoot," the 15-page opinion states.

"While a jury may agree with McGraw's contention that the two incidents were sufficient to put GHPI on notice, GHPI has introduced evidence to enable a jury to reasonably reach the opposite conclusion as well," Baylson wrote. "Further, the broad rule that McGraw asserts (i.e., that, irrespective of context, the discovery of a copyright violation places the injured party on inquiry notice of all other similar infringements) is not supported by any precedent in the third circuit, nor any prior decisions in the eastern district. McGraw relies upon several district court decisions from other districts that addressed clearly distinguishable circumstances from those at issue here."

Baylson also addressed the possibility that Heilman had inquiry notice as of 2009, when a McGraw employee requested permission to include stock photographs in 500,000 textbooks for which it had long ago granted licenses for only 60,000 copies.

"Considering the 'heavy burden' of demonstrating notice at the summary judgment stage, the court finds that the question of notice here is most properly characterized as a genuine factual dispute, although it is a closer call than with the alleged storm warnings in 2006 and 2007," the judge concluded.

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