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Alaska Stock LLC v. Houghton Mifflin Harcourt

Alaska Stock LLC brought suit against Houghton Mifflin Harcourt Publishing Company (HMH) for copyright infringement of its photographs in textbooks, relying on group registrations like the ones found deficient in the Muench Photogrphy Inc. case discussed above.  The District Court dismissed.  We appealed to the Ninth Circuit Court of Appeals, which reinstated the case.  In a rebuke to the lower court, the Appeals Court stated, "We are not performing a mere verbal, abstract task when we construe the Copyright Act. We are affecting the fortunes of people, many of whose fortunes are small. The stock agencies through their trade association worked out what they should do to register images with the Register of Copyrights, the Copyright Office established a clear procedure and the stock agencies followed it. The Copyright Office has maintained its procedure for three decades, spanning multiple administrations. The livelihoods of photographers and stock agencies have long been founded on their compliance with the Register’s reasonable interpretation of the statute. Their reliance upon a reasonable and longstanding administrative interpretation should be honored. Denying the fruits of reliance by citizens on a longstanding administrative practice reasonably construing a statute is unjust."


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. 

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.

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.

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.

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.

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.

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.

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."

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.

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.   


If you have questions about how these cases affect you, we invite you to contact Harmon & Seidman LLC for a free consultation.