The Ninth Circuit held last month that a nonexclusive agent for photographers lacked standing to bring a copyright infringement action on behalf of the photographers for a third party's alleged infringement.
In DRK Photo v. McGraw-Hill, DRK Photo (DRK), the plaintiff, was an agency that contracted with photographers to promote their photographs and sign licensing agreements with publishers who would pay to use the photographers' photographs in their books. DRK received half the licensing fee the publishers paid for use of the photographs.
DRK filed suit against McGraw-Hill for copyright infringement when DRK determined McGraw-Hill was using its clients' photographs without paying a licensing fee. McGraw-Hill moved to dismiss, arguing that DRK lacked the standing to sue because it was not the exclusive agent for the photographers, and therefore DRK had no interest in a party infringing on the photographers' copyrighted work.
The Ninth Circuit agreed with McGraw-Hill, ruling that a nonexclusive agency relationship did not confer standing on DRK. The court explained that an exclusive agency relationship would have led to a different result—the court remarked that DRK and McGraw-Hill settled the claims relating to photographs that DRK had an exclusive right to license. The court also rejected DRK's argument that it was a beneficial owner of the photos, and therefore entitled to sue, based on its ability to sign licensing agreements for those photos. The court stated that a beneficial owner must have held legal title to the photos at one time, and DRK had never actually owned the photos.
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