United States District Court, N.D. Illinois, Eastern Division
For Robert Frerck, Plaintiff: Maurice J. Harmon, LEAD ATTORNEY, Harmon & Seidman LLC, New Hope, PA; Alex Rice Kerr, PRO HAC VICE, Harmon & Seidman LLC, Jackson, WY; Amanda Leigh Bruss, Christopher Seidman, Harmon & Seidman LLC, Grand Junction, CO; E. Bryan Dunigan, III, Law Offices of E. Bryan Dunigan, Chicago, IL.
For Pearson Education, Inc., Defendant: David W Marston, Jr, LEAD ATTORNEY, Caitlin Mckenna, Evan Kramer Jacobs, Jessica A Foberg, PRO HAC VICE, Morgan, Lewis & Bockius, Llp, Philadelphia, PA; J. Kevin Fee, PRO HAC VICE, Morgan, Lewis & Bockius, Llp, Washington, DC; Jason C. White, Richard J Pearl, Morgan, Lewis & Bockius LLP, Chicago, IL.
MEMORANDUM OPINION AND ORDER
Manish S. Shah, United States District Judge.
Plaintiff Robert Frerck, a professional photographer, claims defendant Pearson Education infringed his copyrights by publishing and distributing his photographs beyond the scope of the parties' agreements. Plaintiff also contends defendant infringed his rights by using some photographs
with no permission at all. Plaintiff finally alleges defendant defrauded him by understating its plans for some of his photographs so they would cost less to license.
Plaintiff has moved for partial summary judgment as to liability on a subset of infringement claims. Defendant has moved for partial summary judgment on plaintiff's fraud claims. For the following reasons, I grant both motions.
I. Legal Standard
A party seeking summary judgment must show there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(a). There is a genuine dispute as to a material fact if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In opposing summary judgment, a nonmoving party " must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Likewise, if the nonmoving party's evidence is " merely colorable or is not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249-50 (internal citations omitted). On cross-motions for summary judgment, all facts are construed and all reasonable inferences are drawn in favor of the nonmoving party. Garofalo v. Village of Hazel Crest, 754 F.3d 428, 430 (7th Cir. 2014).
Plaintiff Robert Frerck was a professional photographer engaged in the business of selling stock photographs for nonexclusive use. Dkt. 145-2 ¶ 2, Plaintiff's Response to Defendant's Separate Statement of Facts. Defendant Pearson Education was a publisher of school textbooks and other educational materials. Id. ¶ 1. The parties had been doing business with each other since 1992. Id. ¶ ¶ 3-4.
Whenever defendant wanted to publish some of plaintiff's photographs, it had an image permission coordinator send him a written " billing request." Id. ¶ ¶ 10, 13-14. The billing request identified the photographs being requested and the publications in which they were going to appear. Id. Plaintiff claims the billing requests also provided the maximum number of copies defendant intended to publish, while defendant claims they provided only an estimate. Id. ¶ 10, 14.
Plaintiff responded to the billing request by sending defendant's image permission coordinator an invoice, which contained limitations on print quantities and geographical distributions for the publications at issue. Id. ¶ 11; Dkt. 106-2 ¶ 9, Defendant's Response to Plaintiff's Separate Statement of Facts. The parties dispute the significance of the invoice. Defendant describes it as an acknowledgement of the billing request, a request for payment, and only one part of the parties' licensing agreement. Dkt. 145-2 ¶ 11; Dkt 106-2 ¶ 11. Plaintiff thinks of it as the license in its entirety--granting and setting forth specifically limited rights. Dkt. 145-2 ¶ 11; Dkt 106-2 ¶ 11. Plaintiff also believes that at the time defendant transmitted certain billing requests, it knew its demand for the requested photographs would be--or already was--in excess of the requested licenses. Dkt. 146-2 ¶ ¶ 15-16.
The parties maintained this back-and-forth for almost 20 years, but in July 2011 plaintiff brought suit. Plaintiff's Amended Complaint alleges two sets of claims. The
first set comprises 3,582 separate claims of copyright infringement in violation of 17 U.S.C. § 501, et seq. Dkt. 105 ¶ ¶ 10-11, 25; Dkt. 105-1-105-4. In most instances, plaintiff acknowledges defendant had a valid nonexclusive license to copy his photos, but plaintiff claims defendant nevertheless infringed by (1) printing too many copies of the photographs, or (2) distributing the photographs too broadly. Dkt. 105 ¶ ¶ 10-11; Dkt. 105-1-105-4. In other instances, plaintiff claims defendant infringed by publishing his photographs with no permission whatsoever. Dkt. 105 ¶ 12; Dkt. 105-1-105-4.
The second set of 12 separate claims alleges defendant committed common-law fraud under Illinois law because defendant intentionally misrepresented the number of reproductions it would make and the geographic areas in which it would distribute them, intending that plaintiff would rely on those misrepresentations to his detriment by charging a lower fee. Dkt. 105 ¶ ¶ 11, 28; Dkt. 105-1-105-4.
Plaintiff has moved for partial summary judgment as to liability on a subset  of his copyright claims. Dkt. 98; Dkt. 98-13. Defendant has moved for partial summary judgment on plaintiff's fraud claims. Dkt. 130.
A. Plaintiff's Motion for Partial Summary Judgment
Plaintiff believes no material fact is genuinely in dispute and that he is entitled to judgment as a matter of law. Defendant disagrees and identifies four threshold areas of dispute: (1) defendant's affirmative defenses generally, (2) the statute of limitations, (3) the doctrine of laches, and (4) implied license. ...