On January 4, a federal judge in the U.S. District Court in the Northern District of California refused to dismiss claims of copyright infringement because he found that the plaintiff photographer had sufficiently alleged a pattern of copyright infringement. The opinion illustrates the kinds of allegations of copyright infringement a court will credit with enough weight to survive a motion to dismiss for failure to state a claim.

In Menzel v. Scholastic, Inc., Peter Menzel, a photographer, alleged that publisher Scholastic infringed on his copyrights in 40 photographs. While the parties had entered into licensing agreements for Scholastic to use the photos, Menzel alleged that the publisher infringed because it used the images in ways not covered by the agreements such as after a license had expired, more publications of an image than the license allowed or in a digital medium when the license only covered print.

Showing a “pattern and practice” of infringement

In refusing to dismiss Menzel’s infringement claims, the judge agreed that the plaintiff photographer had shown enough of a pattern of potentially infringing behavior on the part of the defendant publisher. First, Menzel had described detailed allegations of infringement in about one-third of the pictures. This was enough of a sample in the judge’s opinion to show a likely pattern of infringement in all 40 of them.

Second, the plaintiff had pointed to another case in which a court held that Scholastic had infringed the copyrights of other photos as well as to 13 other copyright infringement cases filed against the publisher. The judge said that even though several had settled, it was reasonable to infer that “there were plausible claims of infringement that warranted filing in those cases.”

Third, Menzel had licensed 40,000 copies of certain pictures to be printed in an annual yearbook. He pointed to a different year in which Scholastic had published the yearbook 315,000 times as the basis for his belief that Scholastic had likely violated his license the year he had only licensed his picture for 40,000 copies. The court agreed with Menzel that the large print run in the other year created a reasonable inference that there were more than 40,000 copies printed in the year at issue.

This case is instructive to copyright owners and those accused of violation alike about what kinds of evidence a court may find sufficient to survive a motion to dismiss in a copyright infringement case, allowing it to go to trial.