2020 years 3 month 13 day, The United States Court of Appeals for the First Circuit decided Photographic Illustrators Corp. (PIC) v Orgill, Inc. (Orgill) The case was decided. The court stated that, If the copyright licensee is granted sublicense (sublicense) Unrestricted rights, Licensee may sublicense without express language. specifically, Court order, sublicenser (sublicensor) And the sublicensee (sublicensee) Acts that imply re-licensing.

　　PIC Is a commercial photography service provider, PIC Grant light bulb manufacturer Sylvania A license, Immediate authorization Sylvania use PIC Copyrighted about Sylvania Light bulb photograph. According to PIC grant Sylvania license, Sylvania pay 300 I'll get it after ten thousand dollars PIC A non-exclusive worldwide license for images and Copyrights, Sylvania It can be used freely and permanently anywhere in the world, Sublicense and permit others to use PIC Photo and copyright, The only requirement is that it should be stated that the photograph was taken PIC Photographer owned. Sylvania And its resellers and distributors PIC To promote and sell Sylvania product. One of the distributors Orgill Hope will Sylvania Light bulb photo used in Orgill In both online and paper catalogues. Sylvania to Orgill Provides the picture it wants, But they didn't sign a written agreement, Sylvania There was no warning Orgill Pay attention PIC request, That means all the photos belong to PIC Photographer owned.

　　Sure enough, Orgill Not stated PIC Photos of PIC Photographer owned. PIC So it's suing in U. S. District Court in Massachusetts Orgill Infringement of its copyright ( "United States code" The first 17 chapter 501 article) , violate "Digital Millennium Copyright Act" (DMCA) , Use of false source labels and false claims ( "Lanham process" ) . PIC Still right Sylvania Other distributors and resellers sued, The cases were consolidated for arbitration. it DMCA and "Lanham process" claim, The district court made summary judgment; After the arbitrator's decision on the merger, The District Court also granted summary judgment on claims of copyright infringement. specifically, District court decision Sylvania authorized Orgill An implied sublicense, The claim of ownership is a contract rather than a condition, Therefore PIC No copyright infringement or contractual claims may be made.

　　PIC Appeal to the First Circuit Court of Appeals of the District Court's summary judgment on the copyright infringement claim. 　　PIC According to, although Sylvania General right to sublicense the photograph, But in this case Orgill Lack of sublicense agreement, Because sublicense must be express and should not be implied.

　　about Orgill Has it been taken from Sylvania Access to PIC License of photograph (Express or implied) There are questions of fact, That's enough to invalidate summary judgment.

　　The First Circuit ruled, Where the Licensor permits the Licensee to sublicense freely and to allow others to use the copyrighted work, Sublicense is implied by the acts of sublicensee and sublicensee. 　　In evaluation Sylvania Grant or not Orgill Implied copyright license, The court emphasized that copyright law does not require sublicense to be expressed in a specific language. On the issue of copyright licensing, Circuit courts apply the three-step test with varying degrees of rigor: 　　－The Licensee makes a request to create a work;

　　－Licensor creates and delivers the Work;

　　－The Licensor intends for the Licensee to distribute the work.

　　Unlike other courts, The First Circuit clarified in its analysis: "The key to testing whether there is an implied license 'intention, Intend to (intent) ' . " The First Circuit Court of Appeals rejected it PIC claim--The three-step test should be applied literally to the assessment of implied recolicence. The court emphasized, The strict use of the three-step test means that implied relicense is almost impossible, Because sublicensees generally only deal with licensees, Copyright owners are not required to create copyrighted works. 　　The court explained that, Because the copyright holder sets the terms of the copyright license, Can they control whether and how copyright can be sublicensed. The court emphasized that, With its grant Sylvania Absolute discretion to sublicense and permit use, PIC It would have required that all sublicense be expressed or written, Or prohibit re-licensing.

　　After finding that copyright sublicense can be implied through the acts of sublicensees and sublicensees, The First Circuit also upheld the summary judgment granted by the District Court, namely Sylvania Intend to PIC The photo is re-licensed to Orgill No violation PIC with Sylvania License clause. You can see from this case, Licensor of all types of copyright content should pay special attention to sublicense terms, Any necessary restrictions should be incorporated into the sublicense clause.

(Compiled from natlawreview. com) 　　

Reprinted from China Intellectual Property Network  translation: Rason group　proofread: Wang Dan

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