IP Law Daily, COPYRIGHT—C.D. Ill.: Infringement claims dismissed on statute of limitations grounds in photo dispute, (Nov 8, 2021)

By Deirdre Kennedy, J.D.

Previous litigation brought by photographer for similar uses of his photographs indicated that he had knowledge of the complained-of uses more than three years before suit was filed.

A photographer’s copyright infringement claim against a realtor association was dismissed on statute of limitations grounds because the acts were committed more than three years prior to suit being filed and similar prior litigation brought by the photographer showed that he had knowledge of the alleged infringing uses of his photographs, a federal district court in Illinois has ruled (Boatman v. Peoria Area Association of Realtors, November 5, 2021, Shadid, J.).

Boatman is a professional photographer who contracted with multiple real estate agents in the Peoria and East Peoria, Illinois areas to photograph the interior and exterior of homes. Boatman provided copyrighted photographs to real estate agents pursuant to limited licenses granting the agents the right to use the photos to advertise and market the properties to prospective buyers during the term of the agents’ listing agreements for those properties. The license Boatman provided excluded the right to copy, display, or distribute the pictures after the applicable real estate listing was expired, withdrawn, or sold. Boatman’s clients were members of the Peoria Area Association of Realtors (PAAR) and used PAAR’s multiple listing service (MLS) to advertise and market properties. The last photographs were uploaded to the MLS in 2016.

Boatman alleged that PAAR distributed the photographs without his authorization to a non-party, Move, Inc., which owns the website Realtor.com, and that Move displayed the pictures after the listings for the properties had closed. PAAR had entered into an agreement on June 3, 1996, with non-party REALTORS Information Network (RIN), which previously owned and operated Realtor.com, relating to the display of PAAR’s MLS database on Realtor.com. Boatman alleged that “at some point,” the RIN Agreement was transferred from RIN to Move. The RIN Agreement permitted the owner or operator of Realtor.com to copy, display, or distribute information and photographs for real estate listings that had expired, been withdrawn, or sold. Boatman never granted a license to Move, PAAR, or any realtors to use the pictures after the real estate listings had closed.

Boatman alleged that PAAR failed to police the display of his pictures on Realtor.com after the listings closed. Boatman also alleged that PAAR unilaterally granted rights to third parties that exceeded the scope of his licenses and that PAAR’s volitional distribution of the pictures was the proximate cause of his loss.

Boatman filed a complaint against PAAR on June 30, 2020 alleging copyright infringement. PAAR argued that the court should dismiss Boatman’s Complaint on various grounds, including that his claim was barred by the three-year statute of limitations, which is the only argument the court needed to address.

Statute of limitations. The Copyright Act provides that “[n]o civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claims accrued.” PAAR argued that Boatman’s claim “accrued” when the photographs were last uploaded to the MLS in 2016, and that his claim was barred by the statute of limitations under § 507(b) because he waited until 2020 to file his complaint. Boatman argued that his claim was not time barred because it accrued when he actually discovered that PAAR distributed his photos to Move with greater usage rights than he had granted. Boatman claimed that he discovered PAAR’s unauthorized distribution of his photographs to Realtor.com on September 12, 2017, when he received a copy of the RIN Agreement. However, based on previous lawsuits brought by Boatman, the court found that Boatman knew well before September 2017 that PAAR required real estate agents to assign copyrights in the photos they uploaded to the MLS. He also knew that his photos were being distributed through the MLS to Realtor.com in a manner that he believed exceeded the scope of the licenses he granted to the agents. Therefore, the court found that Boatman’s claim against PAAR was barred by the three-year statute of limitations under § 507(b).

The Case is No. 1:20-cv-01248-JES-JEH.

Attorneys: Evan Andrew Andersen (Evan Andersen Law, LLC) for Michael Boatman. Thomas G Griffin (Walker Wilcox Matousek LLP) for Peoria Area Association of Realtors.

Companies: Peoria Area Association of Realtors

Cases: Copyright IllinoisNews GCNNews