Federal judge keeps alive photographer's copyright infringement lawsuit against Scholastic

By Karen Kidd | Jan 9, 2019

FreeImages - Kristian Rasmussen

SAN FRANCISCO — A freelance photo journalist's copyright infringement lawsuit against children's publisher Scholastic Inc. is still alive following a federal judge's order issued earlier this month.

In his 12-page order issued Jan. 4, U.S. Ninth Circuit Court of Appeals Judge Edward M. Chen denied Scholastic’s motion to dismiss "in its entirety" Peter Menzel's lawsuit but did agree to Scholastic's request to strike a few paragraphs from Menzel's complaint.

Chen struck the paragraphs because they "they simply recite law (e.g., what the elements of copyright infringement are)" but denied Scholastic's request to strike more than a dozen other paragraphs in Menzel's complaint.

Chen's order marked a sudden stop in Scholastic's progress in the case. Chen dismissed Menzel's original complaint and his later amended lawsuit for failure to state a claim.

U.S. Ninth Circuit Court of Appeals Judge Edward M. Chen   cand.uscourts.gov

Menzel, whose works includes images in "What the World Eats," written with Faith D'Aluisio and published by Scholastic in 2008, claims the publisher used his photographs without authorization, exceeding its terms of its agreement with him. Menzel claims Scholastic reproduced some of his images without approval and used other photographs after license to do so expired.

In his second amended complaint, Menzel alleges he owns copyrights to about 40 photographs which Scholastic had 94 licenses to use in specific publications.

"According to Mr. Menzel, although Scholastic had these licenses, Scholastic has committed copyright infringement because it reproduced the photographs at issue in publications that were not approved by Mr. Menzel (i.e., the uses were not actually licensed)," the order said. "Also, Scholastic continued to use the photographs after its licenses were used up or exhausted."

The specific examples of Scholastic's alleged infringement are listed in Menzel's second amended complaint and Chen's order.

Scholastic "essentially argues" against infringement because the publications to which Menzel referred were different publications published five years apart with "no indication that 'the books performed similarly,'" the order said.

"The Court does not agree," Chen's order continued. "Given that all reasonable inferences are to be made in Mr. Menzel's favor at this stage of the proceedings, Mr. Menzel has alleged enough to make a plausible infringement claim."

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