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Minden v. Pearson Education, Inc.
On behalf
of our clients, including California based Minden Pictures, Inc., we have found it necessary to bring several copyright infringement
lawsuits against Pearson Education, Inc. Pearson thought it found a way to "commit the perfect crime" by licensing third-party
copyrighted work to use in its educational publications - requesting and paying for minimum rights, but using far
beyond the rights granted without notice, and then refusing to disclose its unauthorized uses when asked. After Minden
Pictures, Inc. filed its lawsuit alleging 4275 copyright infringements "on information and belief," Pearson sought
dismissal of the case on the grounds that Minden did not have facts to support the claims, and that we were on an improper
"fishing expedition." Because of our experience with Pearson, we were able to plead examples of some specific
infringements, enough to support an allegation of a pattern of infringement, and that at the pleading stage, the law only
requires notice of the claims, not proof. In denying Pearson's motion to dismiss, the Court ruled that "a reasonable
inference can be drawn that, through a pattern and practice of impermissible use and deception, Pearson has profited
from the unauthorized distribution of more than just these [examples]. The judge also rejected Pearson's assertions
that Minden did not have standing to bring the claims on behalf of other photographers, and rejected Pearson's challenge to
the copyright registrations for the images.
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Bean v. John Wiley & Sons
For decades, our client, professional
photographer Tom Bean, licensed photographs to John Wiley & Sons for use in its textbooks. Tom asked us to find
out whether Wiley was using his images beyond the permissions he granted. After Wiley was required to disclose its uses
in response to our discovery requests, we filed a motion for summary judgment on 108 copyright infringement claims. Federal
Judge Martone in the District of Arizona granted our motion and ruled as a matter of law that Wiley committed copyright infringement
in all 108 instances.
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Bean v. McDougal Littell I
Bean v. McDougal Littell II
Harmon & Seidman client and professional photographer Tom Bean retained
us to enforce licenses he granted to textbook publisher Houghton Mifflin Harcourt Publishing Company. We filed his case in
Arizona federal court, alleging copyright infringement and fraud. Houghton moved for dismissal, contending Tom’s copyright
registrations, which were submitted to the Copyright Office by Corbis as part of its group registration program, were defective.
Houghton also demanded dismissal of our fraud pleading, which alleged Houghton engaged in a practice of knowingly obtaining
permissions to print far fewer copies than it needed in order to pay lower license fees and to conceal its infringements.
The Court rejected all of Houghton’s challenges, upholding the validity of Tom’s registrations and the viability
of his fraud claims.
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Beidleman v. Random House, Inc.
In 1996, professional mountaineer, inventor and photographer Neal Beidleman survived “the
deadliest day on Mt. Everest” that was so evocatively described in Jon Krakauer’s book Into Thin Air. In 1998,
Neal’s expedition photographs were published by Random House in an illustrated edition of Into Thin Air under a 25,000
copy license. Random House printed 85,000 copies, but when Neal found about this in 2007, Random House claimed it was too
late - it could not be held accountable. We filed Neal’s case in Colorado federal court, seeking damages for copyright
infringement and fraud. Random House insisted the three year Copyright Act statute of limitations required dismissal of the
copyright claim, and argued the fraud claim was preempted by the Copyright Act. We prevailed on both matters. The Court
ruled that the three year deadline for filing copyright claims starts to run from the date the copyright owner knew or should
have known of the infringement, not three years from the date of the infringement. The Court also held the fraud claim was
not preempted by the Copyright Act.
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Bergt v. McDougal Littell
Santa Fe fine art painter Michael Bergt, responding to publisher McDougal Littell’s
written request, authorized 40,000 copies of his painting Primavera to be printed in the textbook The Language of Literature,
grade 9. McDougal printed over 1,000,000 copies, but claimed it did nothing wrong because Bergt’s invoice did not re-state
the 40,000 copy limit contained in McDougal’s offer letter. McDougal sought dismissal of the case, claiming this omission
meant Bergt intended to grant McDougal unlimited print run rights. The federal district court in Chicago ruled that Bergt’s
invoice was entitled to be considered an acceptance of McDougal’s offer, and need not recite all terms of that offer.
The Court also refused to dismiss our fraud claim.
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Shuptrine v. McDougal Littell
In another case we filed against Defendant McDougal Littell, the federal district court
in Tennessee denied the publisher’s motion to dismiss our fraud pleading, insightfully stating:
Defendant
analogizes the situation to “a customer’s purchase of three pairs of blue jeans while intending to steal a fourth
pair the next day,” which is not fraud. But the analogy is imprecise. In a more accurate representation of Plaintiff’s
allegations, the customer would agree with the seller to buy three pairs of jeans for a certain price while knowing that he
would have to pay a significantly higher price for the ten pairs he intends to, and does, take. But even that analogy does
not fully explain the alleged fraud. A store owner conducting inventory would notice missing blue jeans, but a trusting copyright
holder cannot easily notice that a licensee misrepresented how many copies it would make of copyrighted work. The infringing
activity is obscured from view by the fraudulent act of a knowing misrepresentation.
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Wood v. Houghton Mifflin
Ted Wood is a Boulder based photographer who licensed his photographs for publication
by Houghton Mifflin Harcourt in its textbooks. Houghton asked for, and paid for, the right to print 40,000 copies; it went
on to print over 1,000,000 copies without notice to Ted and without offering to pay any additional compensation. The federal
court in Colorado found Houghton liable for copyright infringement, upheld our claims for Houghton’s profits attributable
to the infringements, and denied Houghton’s motion to dismiss our fraud claims.
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Semerdjian v. McDougal Littell
Our client is the daughter of artist Simon Samsonian, yet another victim of McDougal
Littell’s licensing practices. In her SDNY case, we secured an order from the New York federal court that recognized
our method of calculating actual damages. The publisher insisted that actual damages for unpaid license fees must be limited
to the sum it would have paid had it initially requested permission to print the number it ended up printing years later.
McDougal demanded the quantity discount it would have received had it been honest in its dealings. The Court was not persuaded
and held that the jury is permitted to consider the licensing fees that would have been charged for each of the infringing
print sessions. This has a substantial impact on the total licensing fees owed to the copyright owner. The Court also denied
the publisher’s attempt to avoid disgorgement of its profits attributable to the infringements, rejecting its argument
that, because the images were a small part of the textbook and no purchaser bought the book solely because of these particular
images, there were no profits "attributable to the infringement."
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Moberg v. 33T LLC
Hakan
Moberg, a Swedish professional photographer, hired Harmon & Seidman to stop the unauthorized use of his photographs on
a Delaware website selling design templates. The owners of the website are French citizens who sought outright dismissal
of the case, contending the U.S.courts lacked subject matter jurisdiction because the photographs were not registered with
the U.S. Copyright Office. In a case of first impression, the Delaware federal court upheld our client's right to maintain
a copyright infringement action in the United States. Harmon & Seidman demonstrated its expertise in this highly
technical area of copyright law.
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Muench Photography, Inc. v. Houghton Mifflin Harcourt Pub. Co.
Like many, our clients David and Marc Muench participated in the Corbis Corporation copyright registration program,
under which millions of photographs have been registered with the Copyright Office. To their surprise, a judge in New
York declared Corbis' database registrations invalid even though the application process had been approved by the Copyright
Office. Judge Preska focused on the failure to list the name of each individual photographer in the Corbis database
being registered (the Copyright Office required only three to be named). Corbis, ASMP, and PACA have joined with Harmon &
Seidman LLC in seeking reconsideration, which is now pending.
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