Page:Sohm v. Scholastic.pdf/11

 . As Graham demonstrates, in cases involving licenses, we have interpreted “unauthorized” use to mean use outside of the license. 144 F.3d at 236 (requiring copyright holder to demonstrate that “defendant’s copying was unauthorized under the license”); Bourne, 68 F.3d at 631.

In addition, the district court properly required Sohm to demonstrate use outside the scope of the license. Because Sohm pleaded in his complaint that licenses exist – a fact that Scholastic admits – Sohm bore the burden of proving that Scholastic’s copying was unauthorized, a burden he failed to satisfy. Sohm’s attempts to avoid this burden by recasting the relevant inquiry as one of the existence of a license or of the proper formulation of the elements of a copyright infringement claims are unavailing in the face of these clear principles. The district court properly framed the question as whether Scholastic had exceeded the scope of existing licenses, and therefore properly placed the burden of demonstrating unauthorized copying on Sohm. Accordingly, the court did not err in reciting the elements of a copyright infringement claim nor in requiring Sohm to demonstrate use outside the scope of the license.

Sohm avers that the district court erroneously granted partial summary judgment to Scholastic on his claim at Row 4 of Exhibit 5 to the First Amended Complaint, concerning a photo of a steam engine in Scholastic’s publication Wheels. We agree.

Sohm proffered evidence that Scholastic obtained a limited license from The Image Works to print 40,000 copies of Sohm’s image in Wheels, but actually printed 195,500 copies. Scholastic did not dispute this evidence nor include this claim in the group of claims for which it sought summary judgment on the basis that the evidence did not show infringement. Consequently, the district court’s dismissal of this claim appears to have been inadvertent. Scholastic “agrees that it did not seek dismissal of this claim under any theory agreed with by the District Court,” and thus does not oppose Sohm’s request that this dismissal be reversed. Scholastic’s Br. at 3 n.1. Accordingly, we reverse the district court’s grant of partial summary judgment to Scholastic on Sohm’s claim of copyright infringement corresponding to the image at Row 4 of Exhibit 5 to the First Amended Complaint.

As noted above, Scholastic argues in its cross-appeal that the district court erred when it (1) applied the “discovery rule,” not the “injury rule,” to determine when Sohm’s claims accrued for statute of limitations purposes, id. at 33–35; (2) allowed damages for more than the three years prior to when the copyright infringement suit was filed; and (8) determined that Corbis’s group registrations, which did not indicate that Sohm or Visions of America was the author of any included photographs, were valid under the Copyright Act for Sohm’s individual photographs. We will address each of these contentions in turn.

In Psihoyos, this Court adopted the “discovery rule” for determining when a copyright infringement claim accrues. 748 F.3d at 124–25. Scholastic nevertheless urges this Court to adopt the “injury rule” instead, maintaining that “in two recent decisions following Psihoyos, the Supreme Court cast serious doubt on the viability of