Greg Young is an individual who works in visual art publishing. Beginning in 1992, Young did business under the d/b/a “Greg Young Publishing” (“GYP”). Beginning in 2007, he began using the d/b/a “Greg Young International” (“GYI”). On December 18, 2007, he created GYPI, a California corporation. Young has worked with a number of visual artists. Since 2010, Young has been the licensing agent for Scott Westmoreland, an artist who creates landscape and beach-themed art.
Zazzle is a California corporation with its headquarters in Redwood City, California. It runs a website that allows users to upload images of artwork, slogans, and designs. Users can choose various consumer products they want the image to appear upon (e.g., coffee mugs, posters, t-shirts, etc.), and offer these products for sale to the public. When an order is placed, Zazzle will produce and deliver the product, paying a royalty to the user who uploaded the image appearing on the product.
GYPI alleged that Zazzle has publicly displayed 41 paintings by Westmoreland or Erickson on its website, and that Zazzle has created consumer products bearing these images. It asserted claims for copyright infringement and sought injunctive relief, statutory damages (or, in the alternative, actual damages and restitution), and attorney’s fees.
GYPI and Westmoreland entered an agreement providing that GYPI would be Westmoreland’s “exclusive representative” for soliciting, negotiating, and administering licensing agreements with third parties. Westmoreland holds the copyrights to his paintings, and GYPI agreed that it would not acquire “any right” in these copyrights. GYPI has no authority to enter into contracts on Westmoreland’s behalf, but may present potential agreements to him for his approval. The parties agreed that if Westmoreland elected not to bring an action to enforce his copyrights, GYPI would have the right to do so.
Zazzle argued that GYPI cannot sue to enforce Westmoreland’s copyrights because it lacks any ownership interest in these copyrights. The Court agreed. Although GYPI is Westmoreland’s exclusive representative for soliciting, negotiating, and administering agreements with third parties, it does not have authority to exercise any exclusive right with respect to Westmoreland’s works.
Without his permission, GYPI cannot reproduce, distribute, or display his paintings or create derivative works. At most, GYPI can negotiate licensing agreements and submit them to Westmoreland for approval. That is not a power to use or authorize the use of the copyrighted works. GYPI’s status as Westmoreland’s exclusive representative is insufficient to establish statutory standing under 17 U.S.C. § 501(b).
Thus, GYPI lacks standing to enforce the Westmoreland copyrights; any infringement claim based on these copyrights is to be dismissed.