IP Law Daily, COPYRIGHT—D. Okla.: Photographer’s fraud and breach of contract claims against medical device manufacturer dismissed, (Apr 1, 2026)

By Linda O’Brien, J.D., LL.M.

A photographer sufficiently demonstrated that a medical device maker at least constructively knew of a direct copyright infringement when copyrighted photographs for which it did not pay to use were present on the company's website to promote its products.

In a lawsuit by a photographer alleging that a medical device manufacturer engaged in copyright infringement, breach of contract, and fraud by using her photographs on its website without authorization, the fraud claim and breach of contract claim relating to a website designer’s internal presentation to the manufacturer were insufficiently alleged to state a plausible claim, the federal district court in Oklahoma City, Oklahoma, has ruled. However, the photographer’s breach of contract claim relating to the use of her photographs on the manufacturer’s website and copyright infringement claim based on secondary liability theories could proceed. Thus, the manufacturer’s motion to dismiss was granted in part and denied in part (Dugan v. Exergen Corp., No. 5:25-cv-00157-SLP (W.D. Okla. Mar. 30, 2026)).

Massachusetts medical device manufacturer Exergen Corporation hired advertising and marketing services provider Boston Digital Enterprises to provide design services for Exergen’s website in May 2024. In June 2024, Boston Digital employee Dylan Wilson arranged for professional photographer Alexandra Dugan to photograph the use of Exergen’s pediatric thermometers in a pediatric clinic in Edmond, Oklahoma. In July 2024, Wilson requested that Dugan provide the photo proofs and she sent Wilson a link to an image gallery to view those proofs. Each of the images in the gallery contained a watermark with Dugan’s initials and embedded metadata listing Dugan as the copyright owner. Wilson also requested five high-resolution photographs of the proofs for use in an internal presentation for Exergen. Dugan uploaded the photographs and videos from the photoshoot to a file sharing service, which Boston Digital employees downloaded and forwarded to employees of Exergen.

In September 2024, an Exergen employee requested pricing for four images in the proof gallery and indicated that the images would be used for Exergen's website and social media. Dugan provided Exergen with a formal quote for the licensing or purchase of the rights to use her photographs. After Wilson requested access to other photographs as well as pricing for the use of the photographs in October 2024, Dugan received no further communications from employees of Boston Digital or Exergen nor was she paid for the use or modifications of her photographs.

After two of her photographs were posted on Exergen’s website without her permission or authorization, in February 2025, Dugan filed suit against Exergen and Boston Digital, asserting claims for violation of the Digital Millennium Copyright Act, direct copyright infringement, contributory copyright infringement, vicarious copyright infringement, breach of contract, and fraud. In March 2026, the court dismissed Dugan’s claims against Boston Digital for lack of personal jurisdiction. Before the court was Exergen’s motion to dismiss the contributory copyright infringement, vicarious copyright infringement, breach of contract, and fraud claims for failure to state a claim.

Fraud. Dugan did not sufficiently allege that the employees of Exergen had made an intentional misrepresentation to her, the court found. The fraud claim was based on an alleged representation from Boston Digital employee Wilson that the photographs downloaded from the file sharing service would be used for the sole purpose of including them in an internal presentation concerning the Exergen website. There were no allegations that an Exergen employee was using the photos for an internal presentation. Dugan’s argument that an Exergen employee stated that Exergen would likely license the photographs was rejected as such statement had no meaningful relation to the use of the photographs for Boston Digital’s internal presentation. Thus, Dugan did not state a particularized or plausible claim of fraud against Exergen.

Breach of contract. Dugan did not sufficiently allege facts demonstrating Exergen’s involvement in any contract as to the use of her photographs for Boston Digital’s internal presentation. To state a claim for breach of contract under state law, a plaintiff must allege the formation of a contract, breach of that contract, and damages as a direct result of the breach. Similar to the fraud claim, Dugan relied on the alleged statement of Boston Digital employee Wilson. Since Dugan did not allege that an Exergen employee was involved in the use of the photographs for the internal presentation, Exergen could not be bound to an alleged contract that it was not a party to.

However, Dugan did state a plausible breach of contract claim against Exergen relating to the use of the images on the Exergen website. The complaint alleged that Dugan provided Exergen employees with a formal quote for licensing or purchasing the right to use the photographs taken at the pediatric clinic. The Exergen employee indicated that the quote would be reviewed but Dugan received no further communication from Exergen. Two of her photographs were present on Exergen’s website after she provided that quote. Thus, Dugan has plausibly alleged facts showing that Exergen accepted the benefits of a contract by using her photographs.

Copyright infringement. Dugan sufficiently alleged copyright infringement claims against Exergen based on vicarious and contributory liability theories. Vicarious liability requires that the defendant has a direct financial interest in the use of copyrighted materials and the right and ability to supervise the direct infringer. As to a direct financial interest, Dugan alleged that two of her photographs were present on the Exergen website for a period of time and were used to promote Exergen products. Since Exergen hired Boston Digital to create its website, Dugan plausibly alleged that Exergen had the ability to control the content that Boston Digital used on the Exergen website.

To establish contributory liability, a plaintiff must allege direct infringement of a copyright and the defendant’s knowledge of the direct infringement. Dugan alleged that: (1) she informed Exergen employees that the photographs would need to be licensed or purchased and could not be used without her consent; (2) Exergen employees acknowledged the need to license or purchase the photos, stating Exergen would be likely to license the images; (3) the proofs and photographs contained copyright management information indicating the photographs were the copyrighted material of Dugan; (4) Exergen never paid for the use of the photographs; and (5) two of the photographs were later present on Exergen’s website. It was reasonable to infer that Exergen knew, or at least constructively knew, of a direct copyright infringement where the photographs they did not pay to use were present on the company's website, the court concluded.

The Case is No. 5:25-cv-00157-SLP.

Judge: Palk, S.

Attorneys: Drew T. Palmer (Silverline Legal, PLLC) for Alexandra Dugan. Kerry L. Timbers (Merchant & Gould P.C.) for Exergen Corp.

Companies: Exergen Corp.

Cases: Copyright TechnologyInternet OklahomaNews