Page:Sohm v. Scholastic.pdf/8

 refrain from acting in a specified way, so made as to justify a promise in understanding that a commitment has been made.” Merritt Hill Vineyards Inc. v. Windy Heights Vineyard, Inc., 61 N.Y.2d 106, 112, 472 N.Y.S.2d 592, 460 N.E.2d 1077 (1984) (citation omitted). A condition precedent, on the other hand, is “an act or event … which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises.” Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 690, 636 N.Y.S.2d 734, 660 N.E.2d 415 (1995) (citation omitted). “New York respects a presumption that terms of a contract are covenants rather than conditions,” Graham, 144 F.3d at 237, and “[c]onditions precedent are not readily assumed,” ''Bank of N.Y. Mellon Tr. Co. v. Morgan Stanley Mortg. Capital, Inc.'', 821 F.3d 297, 305 (2d Cir. 2016). Nevertheless, though conditions precedent must be “expressed in unmistakable language,” id. at 305 (quoting Oppenheimer, 86 N.Y.2d at 691, 636 N.Y.S.2d 734, 660 N.E.2d 415), “specific, talismanic words are not required,” id. “[L]inguistic conventions of condition—such as ‘if,’ ‘on condition that,’ ‘provided that, ‘in the event that,’ and ‘subject to[ ]’ ”—can “make plain” a condition precedent. Id. at 305–06. “It is … for the court to decide, as a matter of law, whether a condition precedent … exists under the terms of a contract.” Powlus v. Chelsey Direct, LLC, No. 09-cv-10461, 2011 WL 135822, at *4 (S.D.N.Y. Jan. 10, 2011).

“[I]f ‘a license is limited in scope and the licensee acts outside the scope, the licensor can bring an action for copyright infringement.’ ” ''BroadVision, Inc. v. Med. Protective Co., No. 08-cv-1478, 2010 WL 5158129, at *3 (S.D.N.Y. Nov. 23, 2010) (quoting Jacobsen v. Katzer'', 535 F.3d 1373, 1380 (Fed. Cir. 2008)).

Here, the PVAs, invoices, and documents incorporated therein constitute the license agreements between Scholastic and Corbis. See App’x at 164 (“Along with the Corbis invoice, these terms constitute a binding agreement (‘Agreement’) between you and Corbis Corporation.”); id. at 176 (“ ‘Agreement’ means, collectively, the terms and conditions (i) herein, (ii) in the Invoice(s) and (iii) in the Specific Content Web Page(s) applicable to the Content licensed hereunder, all of which are incorporated into this Agreement by this reference.”).

These license agreements granting Scholastic the right to copy Sohm’s photos contain unmistakable language of conditions precedent, and therefore Sohm properly pleaded claims of copyright infringement. The Terms and Conditions incorporated into and attached to the 2004 PVA state that “[a]ny license granted by Corbis is conditioned upon (i) your meeting all conditions and restrictions imposed by Corbis, and (ii) Corbis’ receipt of full payment by you for such use as invoiced by Corbis.” Id. at 164. The Terms further state that “[u]nless otherwise specified in a separate writing signed by Corbis, your reproduction of Images is limited to (i) internal evaluation or comps, or (ii) the specific use described in your invoice, which together with these terms shall constitute the full license granted.” Id. The Terms also explain that “[e]xcept as specified in the Corbis invoice, Images obtained from Corbis are licensed on a non-transferable, one-time, non-exclusive basis, and are strictly limited to the use, medium, time period, print run, placement, size of image, territory, and any other restrictions indicated in the invoice.” Id. The invoices, in turn, specified the quantity and uses that were licensed. E.g., id. at 127. The Terms also explicitly warned that “[u]nauthorized use of these Images constitutes