District Court Permits Copyright Infringement Action Based on Publication of Books in the U.K. Containing U.S. Copyrighted Image Where U.S. Infringement Permitted U.K. Infringement To Occur

The World in U.S. Courts: Fall 2014 - Intellectual Property (Copyright)

Cooley v. Penguin Group (USA), Inc., U.S. District Court for the Southern District of New York, July 14, 2014

A photographer created pictures of a sculpture of dinosaur eggs for inclusion in an article in National Geographic magazine.  Both the sculpture and the photographs were copyrighted by their respective creators.  The photographer made his photographs available in the U.S. to various stock photography agencies, and several photos were licensed by a publisher that included them in a series of books on dinosaurs published in Great Britain.  Neither the photographer nor the publisher had obtained the sculptor's permission to display his copyrighted work.  The sculptor sued the photographer and the publisher for copyright infringement, among other claims.

The U.S. District Court in New York concluded that the copyright infringement claim was well-founded, in that the photographer's copyright did not extend to a right to copy the sculptor's work without his permission.  It found direct infringement in the photographer's contracting with the stock photo agencies, and indirect or vicarious liability for the republication of the photographs in the dinosaur books.

With respect to its finding of indirect or vicarious liability, the Court considered whether publication in Great Britain could constitute infringement of the sculptor's copyright, given the Copyright Act's general rule against extraterritorial application.  The Court noted an exception to the general rule for cases in which a U.S. infringement "permits" further infringement in another country.  It found this exception to be satisfied by the photographer's contracting with U.S. stock photography agencies for the distribution of the works in question.

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