Page:Sohm v. Scholastic.pdf/6

 therefore granted summary judgment to Scholastic as to these 12 uses. Id. at *9.

For another group of 43 uses, the court found that Sohm had failed to offer any evidence that a use occurred at all and thus granted summary judgment to Scholastic as to these uses as well. Id. As part of this group, the court included a claim corresponding to Exhibit 5 to the First Amended Complaint, Row 4, concerning a photo of a steam engine in Scholastic’s publication Wheels.

For the final 36 uses, Scholastic contended that Sohm had not satisfied his evidentiary burden to prove that the uses were infringing. Sohm did not dispute this assertion but attributed the shortcoming to Scholastic’s failure to provide invoices and usage information and sought to withdraw the claims without prejudice. Id. The court determined that dismissal without prejudice was inappropriate, primarily due to the extent to which suit had progressed and the duplicative expense of relitigation. Consequently, the court dismissed the claims with prejudice. Id.

The court next considered Sohm’s motion for partial summary judgment based on 13 uses Scholastic did not dispute exceeded the authorized print run. Id. at *10. Scholastic averred that it could not be held liable for infringement as to these uses because (1) Sohm’s claims are barred by the Copyright Act’s limitations provision; (2) Sohm’s damages should be limited to those incurred within the three years before commencement of the suit; and (3) under Scholastic’s PVAs with Corbis, the relevant print-run limitations were contractual covenants, not conditions precedent, meaning that the claims for exceeding the limitations sounded in breach of contract, which was not pleaded by Sohm, rather than copyright infringement. Id. at *10–14.

Considering Scholastic’s statute of limitations claim first, the court applied the discovery rule and rejected Scholastic’s assertion that Sohm, with due diligence, should have discovered the infringing acts more than three years prior to when he brought suit. Id. at *10–11. The court concluded that Scholastic had failed to identify affirmative evidence of any information that could have prompted an inquiry by Sohm. Id. at *11.

Second, the court found Scholastic’s contention that damages should be limited to the three years prior to the suit irrespective of the statute of limitations unavailing. Id. The court noted that the issue has split district courts in this Circuit post Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 134 S.Ct. 1962, 188 L.Ed.2d 979 (2014), but ultimately reasoned that Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120 (2d Cir. 2014), remained good law and that Petrella should not be read to establish a time limit on the recovery of damages distinct from the statute of limitations. Sohm, 2018 WL 1605214, at *11.

Third, the district court analyzed Scholastic’s assertion that the print-run limitations in its Corbis licenses were covenants, rather than conditions. Id. at *12–14. Applying New York law, the court found that the payment terms in Corbis’s PVAs with Scholastic did not contain sufficiently unmistakable language to give rise to a condition precedent and were therefore contractual covenants. Id. at *13. Sohm’s claims therefore sounded in breach of contract, which he had not pleaded. Accordingly, the court granted summary judgment to Scholastic on these claims. Id. at *14.

The district court last considered Sohm’s claims as to images licensed by Photo Researchers and Image Works, found that Scholastic had not raised a genuine dispute of fact as to whether it had infringed those