Establishing exclusivity in the rights to copyrighted work
To bring a copyright infringement lawsuit, a party must possess an exclusive right in the work under the Copyright Act. But, as a defendant in an infringement claim recently learned, multiple parties can have such an exclusive right in a single copyright — so multiple parties can sue for infringement of that copyright.
The photos in question
In 2014, famed photographer Annie Leibovitz signed an agreement with a licensing agency operated by Great Bowery Inc. It provides exclusive worldwide representation to license her photographs, but Leibovitz reserved the “right to collaborate with or deliver” any of the licensed images to specified third parties for use in special projects.
In the following decade, as three new “Star Wars” movies were released, Condé Nast invited Leibovitz to take on-set photographs of the cast and crew for Vanity Fair magazine. In 2022, Great Bowery discovered that some of these photos appeared in articles on the internet.
It sued Consequence Sound LLC and Consequence Media Group Inc. (Consequence) for copyright infringement. The trial court dismissed the case before trial, finding that Great Bowery lacked standing to bring the lawsuit because it didn’t have an exclusive right under the copyright. Great Bowery appealed.
Divisible rights
According to the trial court, Great Bowery didn’t have an exclusive right because Leibovitz retained certain rights in their 2014 agreement. But, on appeal, the U.S. Court of Appeals for the Eleventh Circuit found that Leibovitz’s retention of certain rights didn’t automatically doom Great Bowery’s claimed status as an exclusive licensee.
Under the Copyright Act, a copyright grants several different kinds of exclusive rights — for example, the rights to reproduce, distribute and display the copyrighted work. These rights, the court said, are divisible and subdivisible.
Therefore, even if Leibovitz retained the exclusive right to “deliver” her photographs to the specified parties for use in special projects, she may have granted Great Bowery other exclusive rights to them. As the court explained, under copyright law, when one person owns some exclusive rights and another owns others, each is entitled to sue for infringement of its particular right.
Exclusive vs. nonexclusive rights
The appellate court also considered Consequence’s alternative argument that Great Bowery couldn’t have received an exclusive license to the photos because Condé Nast held a “nonexclusive right to publish and print each of the [photographs] as they appeared in [its] publications … at any time for the full term of the copyright.” According to Consequence, any license held by Great Bowery would necessarily be nonexclusive in light of Condé Nast’s rights.
The court dismissed this argument as well, noting that standing under the Copyright Act requires that the plaintiff be the legal or beneficial owner of an exclusive right. When the copyright owner grants a nonexclusive license, it grants the licensee permission to exercise one of its rights nonexclusively.
The grantor remains the owner, though, so it can subsequently transfer its ownership interest in one of the exclusive rights by granting someone else an exclusive license. Thus, Condé Nast’s nonexclusive license didn’t affect whether Great Bowery received an exclusive license.
Still developing
The Eleventh Circuit didn’t determine whether Great Bowery did indeed receive an exclusive license, though. It merely vacated the trial court’s dismissal and sent the case back for further consideration of that and other issues.
© 2026
