Great Bowery Inc. v. Consequence Sound — Eleventh Circuit Revives Annie Leibovitz Photo Licensing Agency’s Copyright Infringement Suit

Background

Annie Leibovitz, the renowned portrait photographer, signed an Artist Agreement in 2014 granting Trunk Archive (operated by Great Bowery Inc.) the “exclusive worldwide right to license, market, and promote” her photographs. The agreement carved out only a narrow exception: Leibovitz retained the right to collaborate with Robert Pledge and Contact Press Images for “special projects.”

Over the following decade, Leibovitz photographed the casts of three Star Wars films for Vanity Fair. When Great Bowery discovered that some of those photographs appeared on Consequence Sound’s website (www.consequence.net), it filed a copyright infringement suit in the Southern District of Florida.

The district court granted summary judgment to Consequence Sound, concluding that the Artist Agreement did not give Great Bowery an exclusive right because Leibovitz retained the collaboration carve-out. Without an exclusive right, the court held, Great Bowery lacked statutory standing under 17 U.S.C. § 501(b). Great Bowery appealed.

The Court’s Holding

The Eleventh Circuit vacated the summary judgment and remanded the case, holding that the district court applied the wrong legal framework.

Under the Copyright Act, copyright rights are divisible and subdivisible (17 U.S.C. § 201(d)(2)). Two different parties can each hold exclusive rights to the same copyrighted work — one as to some § 106 rights, another as to other § 106 rights — and both can independently sue for infringement of their respective rights. The district court erred by treating Leibovitz’s retention of any rights as negating exclusivity for Great Bowery across the board.

The court also rejected Consequence Sound’s argument that because Condé Nast held a nonexclusive license to publish some of Leibovitz’s photos, any license Great Bowery received was necessarily also nonexclusive. As the court explained, a prior grant of a nonexclusive license does not prevent the copyright owner from subsequently granting an exclusive license to someone else covering a different § 106 right.

On remand, the district court must analyze: (1) which specific § 106 rights the Artist Agreement transferred to Great Bowery and whether those rights are exclusive, (2) whether a 2018 Authorization Letter signed by Leibovitz independently granted exclusive rights, and (3) which state’s contract law governs interpretation of the agreement.

Key Takeaways

• Retention of some rights does not negate exclusivity. A photographer who carves out narrow collaboration rights for herself can still grant an exclusive license to a licensing agency for the remaining § 106 rights.
• Prior nonexclusive licenses do not bar subsequent exclusive grants. The existence of a magazine’s nonexclusive publishing license does not prevent the copyright owner from granting worldwide exclusive licensing rights to another party.
• Defendants may always challenge a plaintiff’s exclusive ownership. The Eleventh Circuit aligned with the Second and Ninth Circuits in holding that a defendant may challenge a plaintiff’s § 501(b) standing even when the copyright owner does not dispute the license.
• Timeliness matters for party joinder. Great Bowery’s attempt to add Leibovitz as a co-plaintiff was denied as untimely because it was filed two days before the dispositive motion deadline — a cautionary note for licensees facing standing challenges.

Why It Matters

This decision is significant for photo licensing agencies, stock archives, and any business that holds exclusive licensing rights rather than outright copyright ownership. It clarifies that lower courts cannot dismiss an infringement suit simply because the copyright owner retained some rights. The inquiry must focus on whether the plaintiff owns at least one exclusive § 106 right that the defendant infringed — not on whether the license is “exclusive” in some absolute, all-encompassing sense.

For the photography industry specifically, this case reinforces the enforceability of agency licensing models. A photographer’s deal with a licensing house like Trunk Archive can support independent infringement enforcement, even if the photographer retains limited rights for personal projects or specific collaborators.