On April 16, 2018, the United States Supreme Court denied certiorari on a case between DRK Photo, a stock photo licensing agency, and McGraw-Hill, an academic publisher, making the September 2017 holding of the 9th Circuit Court of Appeals the final word on this case.
DRK markets and licenses stock photography to many organizations, including publishing entities like McGraw-Hill, who licensed photos from DRK for use in many of its textbooks. DRK sued McGraw-Hill, claiming that McGraw-Hill had exceeded the terms of those agreements. However, McGraw-Hill was saved on summary judgment by the defense that DRK was not the "owner of an exclusive right" for any of the works under the Copyright Act, and so could not bring the suit against them in the first place. 17 U.S.C. § 501(b).
What constitutes an "owner[ship] of an exclusive right" matters in a world where the organization of entities to license and enforce the rights of creators is increasingly common. DRK is not the first licensing agency to bring suit for infringement of the works they license, nor is it the first to face the question of "How much ownership is enough ownership to bring a suit?"
The court clarified in this case that: (1) an agreement, like DRK's, that doesn't preclude creators from granting third parties the right to license their works is not enough to create ownership; and (2) transfer of legal title of a work only for the time necessary to register the images and resolve infringement claims is not sufficient to establish ownership, without any substantive change in the practical flow of fees, royalties, or licensing rights under the orignial agreements. The court emphasized on this second point that an agreement, which "for all practical purposes, ... did nothing more than transfer the right to sue" is not sufficient ownership to bring an infringement claim.