Publisher Exceeding Limited Licenses
Stack v. McGraw-Hill, 17-cv-01689 (S.D. N.Y.); Greenberg v. McGraw-Hill, 17-cv-00436 (E.D. Pa.); Grant Heilman Photography, Inc. v. McGraw-Hill, 12-cv-02061 (E.D. Pa.)
By Tyron Jensen
On March 7, 2017, Thomas Stack filed a copyright infringement suit against the McGraw-Hill publishing company. This is the latest of many, almost identical, cases filed against McGraw-Hill in the past few years. Stack, a professional photographer, alleges that McGraw-Hill copied and distributed Stack’s copyrighted photographs “without authorization or license and/or in excess of any limited authorization or license they allegedly obtained.”
Stack alleges that McGraw-Hill obtained licenses for the use of a number of his photographs in a number of different textbooks. The licenses were expressly limited by the number of copies, distribution area, language, duration, and media. McGraw-Hill allegedly “routinely violated the express restrictions and limits” authorized by Stack. Stack’s allegations fall in line with a number of allegations common to the host of complaints filed against McGraw-Hill recently, the allegations include:
a. printing or distributing more copies of the Photographs than authorized;
b. distributing publications containing the Photographs outside the authorized distribution area;
c. publishing the Photographs in electronic, ancillary, or derivative publications without permission;
d. publishing the Photographs in international editions and foreign publications without permission; and
e. publishing the Photographs beyond the specified time limits.
Stack alleges, similar to the plaintiffs before him, that McGraw-Hill has been able to keep these infringing practices concealed because they keep information regarding its publications and photograph use confidential. The first cases brought against McGraw-Hill for this type of complaint arose when McGraw-Hill voluntarily sent payments to copyright holders for use in excess of their limited licenses.
In September 2014, a District Court in the Eastern District of Pennsylvania held a bellwether trial for a fraction of infringement claims brought by Grant Heilman Photography Inc. (GHPI) against McGraw-Hill. The court allowed discovery for 30 of the over 2000 claims – 24 chosen by GHPI and 6 chosen by McGraw-Hill. A jury found McGraw-Hill had infringed GHPI’s copyrights and awarded McGraw-Hill pay $127,087.00. The Court later amended the amount to $64,634.00. McGraw-Hill later conceded liability for an additional 1,092 claims of infringement and agreed to a confidential settlement agreement. This minitrial and settlement agreement appears to have opened the gates for the suits filed since.