IP Law Daily, COPYRIGHT—D. Mass.: Graphic artist gave implied license for use in promotional brochure, (Jan 7, 2026)

By Matthew Hersh, J.D.

The validity of the artist’s copyright registration may also be in question.

A graphic designer who created a marketing brochure for a company that makes outdoor enclosed sunrooms was not entitled to move forward on her claim that the company used the brochure without her permission because the evidence showed that she intended to give it a license for just such use, the federal court for Worcester, Massachusetts has held. The court, in granting summary judgment for the company in a case that has now run for over seven years and has made two trips to the court of appeals, also took the step of referring the designer’s copyright registration to the Register of Copyrights to determine if it was valid (Foss v. Marvic, Inc., No. 4:20-cv-40057-MRG (D. Mass. Jan. 6, 2026)).

The lengthy litigation arises out of a short engagement in 2006. Brady-Built Sunrooms, a Massachusetts-based designer and builder of custom year-round sunrooms, hired graphic designer Cynthia Foss to update its marketing brochure. The graphic designer did her work, received her payment for the work, and had no further involvement with the company after that. Ten years later, however, the graphic designer came across the 2011 version of the company’s brochure. The designer, believing the company had purloined her 2006 work, sued for copyright infringement (and various common law claims) in 2017.

The lawsuit then made a lengthy journey through the courts. The district court dismissed the copyright infringement claim in 2019 on the grounds that she had not registered a copyright in the works at issue. Later in that same year, the district court granted summary judgment in favor of the sunroom builder on the remaining common law claims. The First Circuit affirmed those rulings in 2021.

That did not deter the graphic designer however. Armed now with a copyright registration, she filed a second copyright lawsuit against the sunroom company. The district court dismissed the lawsuit on the grounds that it was precluded by court’s dismissal of the first action. But the court of appeals this time reversed, finding that the first dismissal was not on the merits and therefore could not have had preclusive effect.

That sent the copyright infringement case back to the district court, where discovery and further briefing continued. The sunroom company then moved for summary judgment on the claim, leading to this opinion.

Implied license. The court granted summary judgment to the sunroom company. When one person creates a work and delivers it to another without a formal licensing agreement, the court noted, a license can nonetheless be implied from the circumstances of the relationship. In determining whether the creator of a work intended to grant a license to the recipient of that work, the court noted, courts often start with a “framework” that considers the following factors: (1) whether the parties were engaged in a short-term discrete transaction as opposed to an ongoing relationship; (2) whether the creator utilized written contracts, such, as a standard contract, providing that copyrighted materials could only be used with the creator's future involvement or express permission; and (3) whether the creator's conduct during the creation or delivery of the copyrighted material indicated that use of the material without the creator's involvement or consent was permissible. Under this test, the court found, an implied license existed here.

All of the factors pointed strongly to the existence of an implied license, the court emphasized. As to the first factor, the court noted, the designer and the company had only “a short-term discrete transaction” and never worked together again. As to the second factor, the court noted, the designer operated without a written contract and so there was nothing in writing that limited the company’s use of the designer’s work. As to the third factor, the court found, the designer’s conduct made clear that she intended the company to use her work without her permission. Indeed, the court noted, she added the company’s © symbol to her work, left space for a mailing address on the brochure so that it could be distributed, and even contacted a printer directly for a price check on printing services. Given that evidence, the court concluded, the designer’s intent for the company to copy and make use of her work was readily apparent.

Referral to Register. But this was not the end of the matter for the designer. In addition to seeking summary judgment on the merits of the claim, the company asked the court to refer the validity of the designer’s copyright registration to the Register of Copyrights. The court granted the request. In creating the 2006 brochure for the company, the court noted, she incorporated pre-existing text, images, customer testimonials, and photographs from an older brochure version. Yet in her registration applications and communications with the Copyright Office, the court noted, she claimed that she was the sole author of the entire brochure. Referral to the Register was appropriate so that the Register could consider whether the registration was indeed valid.

The Case is No. 4:20-cv-40057-MRG.

Judge: Guzman, M.

Attorneys: Andrew Grimm (Digital Justice Foundation) for Cynthia “Cindy” Foss. James M. McLaughlin (Sullivan & Sullivan, LLP) for Marvic, Inc., and Brady-Built, Inc.

Companies: Hunter Foss Design; Marvic, Inc.; Brady-Built, Inc.

Cases: Copyright MassachusettsNews