Page:Daniel Schrock v. Learning Curve International, Inc. 7th Cir. 08-1296.djvu/4

 continue to use Schrock’s photos. Whether Schrock could copyright his photographs and maintain an infringement action against the defendants depends on the contractual understandings between Schrock, Learning Curve, and HIT. Accordingly, we remand to the district court for further proceedings consistent with this opinion.

I. Background
HIT is the owner of the  copyright in the  “Thomas & Friends” properties,  and  Learning  Curve is a producer and distributor of children’s  toys. HIT and Learning Curve entered into a licensing agreement granting Learning Curve a license to  create and market toys based on HIT’s characters. HIT and Learning Curve maintain (through an affidavit of HIT’s vice-president of licensing) that HIT retained all intellectual-property rights in the works produced under the  license. The licensing agreement, however, is not in the record.

In 1999 Learning Curve retained Daniel Schrock to take product photographs of its toys, including those based on HIT’s characters, for use in promotional materials. On numerous occasions during the next four years, Schrock photographed several lines of Learning Curve’s toys, including many of the “Thomas & Friends” toy trains, related figures, and train-set accessories. (We have