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 copyright infringement and shall entitle Corbis to exercise all rights and remedies under applicable copyright law.” Id. at 164.

The Terms and Conditions incorporated into and attached to the 2008 PVA contain similar language, stating that “[a]ny and all licenses granted by Corbis are conditioned upon (i) Your compliance with all provisions of this Agreement, and (ii) Corbis’ receipt of full payment by You as identified in the applicable invoice.” Id. at 175. The Terms also state that “[e]xcept where specifically permitted on the Invoice for the applicable Content, You may not distribute, publish, display, or otherwise use in any way, the Rights Managed Content.” Id.

These provisions are replete with the conditional language of conditions precedent – “unless,” “conditioned upon,” “except where specifically permitted” – thereby directly refuting the conclusion that the license agreements created only contractual covenants, the violation of which sounds in breach of contract. Sohm asserts that Scholastic exceeded print-run limitations contained in the invoices forming part of the license agreements, and thus he properly pleads that Scholastic has violated a restriction upon which the license is conditioned.

We are not alone in reaching this conclusion. In Kashi v. McGraw-Hill Global Education Holdings, No. 17-cv-1818, 2018 WL 5262733 (E.D. Pa. Oct. 23, 2018), the district court, interpreting similar license agreements to those at issue here and applying New York law, reasoned that “the language of [the PVAs], along with the invoices, create[s] a condition in unmistakable terms,” id. at *5. “[T]hus, by exceeding the uses authorized by the invoices, Defendants violated a condition of their license agreements with Corbis,” thereby entitling plaintiff to assert copyright infringement claims. Id. Rejecting an interpretation of the license agreements that would render provisions mere delineations of acceptable and unacceptable behavior, the court found that such an analysis would render it “virtually impossible to limit the scope of the license.” Id. at *6. Rather, the license agreements’ language “clearly stated that authorization to use a photo was conditioned upon an invoice granting permissions and upon receipt of payment,” and thus “put unauthorized use in excess of the quantities permitted by the invoices beyond the scope of the Agreements.” Id. Overuse of the photos, therefore, “implicates a condition, not a covenant, and … any alleged breaches sound in copyright infringement, not breach of contract.” Id. at *7.

Numerous other courts have agreed when confronted with similar circumstances. See, e.g., Menzel v. Scholastic, Inc., No. 17-cv-5499, 2019 WL 6896145, at *7–9 (N.D. Cal. Dec. 18, 2019); Krist v. Pearson Educ., Inc., 419 F.Supp.3d 904, 911–914 (E.D. Pa. 2019); Krist v. Scholastic, Inc., 415 F. Supp. 3d 514, 533–36 (E.D. Pa. 2019); ''Harrington v. McGraw-Hill Glob. Educ. Holdings, LLC, No. 17-cv-2960, 2019 WL 1317752 (D. Colo. Mar. 22, 2019); Pac. Stock, Inc. v. Pearson Educ., Inc.'', 927 F. Supp. 2d 991 (D. Haw. 2018). In Harrington, the district court interpreted substantially identical Corbis agreements to those at issue here and agreed with the Kashi court that “the parties’ agreement expressly provided that unauthorized use of the images would constitute copyright infringement,” and that use in excess of the print-run limitations was unauthorized use. 2019 WL 1317752, at *3. The court emphasized the same language in the parties’ agreements and rejected course of conduct evidence as insufficient to convert the case from one of copyright infringement to one of breach of contract. Id. In Pacific Stock, the court reached a