Great Bowery Inc. v. Consequence Sound LLC, et al

FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-12482
____________________
GREAT BOWERY INC.,
a.k.a. Trunk Archive,
Plaintiff-Appellant,
versus
CONSEQUENCE SOUND LLC,
CONSEQUENCE MEDIA GROUP INC.,
DOES 1 THROUGH 10, INCLUSIVE,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:23-cv-80488-RLR
____________________
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2 Opinion of the Court 24-12482
Before J ORDAN and NEWSOM , Circuit Judges, and C ORRIGAN,∗
DISTRICT J UDGE .
J ORDAN, Circuit Judge:
Annie Leibovitz is a world-famous photographer known for
her portraits of celebrities. See, e.g., Jane Bua, Annie Leibovitz
Outside the Frame, The New Yorker (Nov. 17, 2025). In 2014, she
signed an agreement with Trunk Archive, a business operated by
Great Bowery Inc., for exclusive worldwide representation to
license her photographs. Great Bowery then brought suit, in its
own name, against several defendants for copyright infringement
of photos taken by her.
The question presented on appeal is whether Great Bowery
has statutory standing under the Copyright Act to bring this action.
The district court ruled that it did not and granted summary
judgment to the defendants.
After review of the record, and with the benefit of oral
argument, we conclude that the district court’s understanding of
copyright law was not quite right. The court believed that, because
Ms. Leibovitz retained certain rights in her written agreement,
Great Bowery lacked standing. Because that analysis was mistaken,
we vacate the summary judgment order and remand for further
proceedings.
∗ The Honorable Timothy Corrigan, United States District Judge for the
Middle District of Florida, sitting by designation.
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24-12482 Opinion of the Court 3
I
In 2014, Ms. Leibovitz and Trunk Archive executed a
written “Artist Agreement.” Under the Agreement, Ms. Leibovitz
“grant[ed] to Trunk Archive the exclusive worldwide right to
license, market, and promote” certain images she created. But Ms.
Leibovitz reserved the “right to collaborate with or deliver” any of
those images “to Robert Pledge and/or Contact Press Images for
use in special projects or other endeavors [she] deems of interest.”
In the decade that followed, three new Star Wars movies
were filmed. Each time, Condé Nast invited Ms. Leibovitz to the
movie set to take photographs of the cast and crew for Vanity Fair
Magazine. For each photo shoot, Condé Nast signed written
agreements with “AL Studio, LLC . . . f/s/o Annie Leibovitz.”
Each agreement contained a “Reservation of Rights” clause, which
provided that “[a]ll rights with regard to the Works not expressly
granted herein are retained by Contributor.” The term
“Contributor” was defined as AL Studio, LLC, not Ms. Leibovitz.
In 2022, Great Bowery discovered that some of the Star Wars
photos taken by Ms. Leibovitz appeared in articles on
www.consequence.net, a website operated by at least one of the
defendants. It filed this lawsuit against Consequence Sound LLC
and Consequence Media Group Inc. a few months later.
During discovery, Great Bowery produced an
“Authorization Letter” signed by Ms. Leibovitz in 2018. The letter
reads as follows:
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4 Opinion of the Court 24-12482
This letter is to confirm that Great Bowery, Inc.
d/b/a Trunk Archive . . . [is] hereby authorized by
me to act on my behalf in all matters relating to
copyright infringement of my work. Such
authorization includes sending cease and desist
letters, initiating and prosecuting litigation or other
formal proceedings in my name and on my behalf as
a named claimant or co-claimant in relevant courts,
administrative bodies or private forums in order to
enforce my copyrights, negotiating settlement
terms/conditions and monetary restitution, receiving
payments, seeking, obtaining and enforcing
judgments and signing all documents and providing
all reasonable cooperation relating to these matters.
In executing this document, I represent and warrant
that I am the holder of all rights, title and interest in
and to the copyrighted works for which Trunk
Archive will be acting on [my] behalf. I further
acknowledge and agree that neither my other agents
nor I will separately attempt to settle or resolve any
instances of infringement without first notifying
Trunk Archive thereof in order to ensure that the
work of Trunk Archive . . . on [my] behalf is not
undermined. . . .
D.E. 33-13.
Two days before the deadline for dispositive motions, and
seven months after the deadline to join parties, Great Bowery
moved to amend the complaint. Its proposed amended complaint
would have added Ms. Leibovitz as a co-plaintiff. The district court
summarily denied the motion as untimely.
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24-12482 Opinion of the Court 5
Without taking any depositions, the parties cross-moved for
summary judgment. The defendants—to whom we refer
collectively as “Consequence”—argued that Great Bowery lacked
statutory standing to bring an action for copyright infringement
because it is not a “legal or beneficial owner of an exclusive right
under a copyright.” 17 U.S.C. § 501(b).
The district court agreed with Consequence, concluding
that neither the Artist Agreement nor the Authorization Letter
granted Great Bowery an exclusive right under a copyright.
Regarding the Artist Agreement, the court reasoned that, because
Ms. Leibovitz retained for herself the right to use the photographs
in collaborations with Robert Pledge and Contact Press Images, she
did not grant Great Bowery an “exclusive” license. And because
Great Bowery was not the owner of an exclusive right, it lacked
standing under § 501(b) to sue for infringement. The court
therefore granted Consequence’s motion for summary judgment
and denied Great Bowery’s.
II
We first address Great Bowery’s challenge to the order
denying leave to amend the complaint. We review the denial of
such a motion for abuse of discretion. See, e.g., Fla. Evergreen Foliage
v. E.I. DuPont De Nemours & Co., 470 F.3d 1036, 1040 (11th Cir.
2006).
Great Bowery contends that the district court had no
discretion here. Because 17 U.S.C. § 501(b) provides that “[t]he
court . . . shall permit the intervention[ ] of any person having or
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6 Opinion of the Court 24-12482
claiming an interest in the copyright,” Great Bowery argues that
the court was required to grant the motion no matter how
untimely it was.
We disagree. First, and critically, Ms. Leibovitz never
moved to intervene, so § 501(b) is inapplicable. Second, even if she
had moved to intervene, and even if § 501(b) gave her an
unconditional right to do so, a motion to intervene under Rule
24(a) must be timely. See Fed. R. Civ. P. 24(a); N.A.A.C.P. v. New
York, 413 U.S. 345, 365 (1973). Cf. Photographic Illustrators Corp. v.
Orgill, Inc., 316 F.R.D. 45, 49 (D. Mass. 2016) (copyright claimant’s
motion to intervene, filed 20 months after learning of the
infringement action, was untimely). Great Bowery does not
explain why its motion for leave to amend—even if functionally
treated as a motion by Ms. Leibovitz to intervene—was timely.
We therefore affirm the district court’s denial of the motion for
leave to amend.1
III
Turning to the merits, we review a grant of summary
judgment de novo, viewing the evidence in the light most
favorable to the nonmoving party and drawing all inferences in its
favor. See Hoak v. Ledford, 153 F.4th 1148, 1153 (11th Cir. 2025).
Summary judgment is appropriate only “if the movant shows that
1 If Ms. Leibovitz believed that the denial of Great Bowery’s motion for leave
to amend somehow constituted a denial of her intervention, she could have
separately appealed. See Stone v. First Union Corp., 371 F.3d 1305, 1308 (11th
Cir. 2004). But she did not do so.
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24-12482 Opinion of the Court 7
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). If
a reasonable fact finder could draw an inference in the non-
movant’s favor as to any material factual issue, summary judgment
is not appropriate. See United States v. Four Parcels of Real Prop., 941
F.2d 1428, 1437 (11th Cir. 1991) (en banc). And “[i]f reasonable
minds could differ on the inferences arising from undisputed facts,
then a court should deny summary judgment.” Pioch v. IBEX Eng’g
Servs., Inc., 825 F.3d 1264, 1267 (11th Cir. 2016) (internal quotation
marks and citation omitted).
When the nonmoving party has the burden of proof at trial,
“[t]he moving party bears the initial responsibility of informing the
court of the basis for its motion, and identifying those portions of
the [record] which it believes demonstrate the absence of a genuine
issue of material fact.” Four Parcels, 941 F.2d at 1437 (internal
quotation marks and ellipsis omitted). “If the moving party shows
the absence of a triable issue of fact . . . the burden on summary
judgment shifts to the nonmoving party, who must show that a
genuine issue remains for trial.” Id.
A
We begin with some general principles. A copyright is a
limited monopoly in an “original work[ ] of authorship.” 17 U.S.C.
§ 102(a). See also Stewart v. Abend, 495 U.S. 207, 228–29 (1990)
(describing copyright as a “limited monopoly”). Examples include
literary works, musical works, and works of visual art.
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8 Opinion of the Court 24-12482
In general, the owner of a copyright “has the exclusive rights
to do and to authorize” five things: (1) reproduce the copyrighted
work; (2) prepare derivative works based on the copyrighted work;
(3) distribute copies of the copyrighted work; (4) perform the
copyrighted work publicly; and (5) display the copyrighted work
publicly. See 17 U.S.C. § 106. Other rights attach to certain kinds
of copyrighted works as well. See generally 17 U.S.C. §§ 106(6),
106A. “Anyone who violates any of the exclusive rights of the
copyright owner . . . is an infringer of the copyright[.]” 17 U.S.C.
§ 501(a).
This appeal concerns § 501(b), which reads as follows:
The legal or beneficial owner of an exclusive right
under a copyright is entitled . . . to institute an action
for any infringement of that particular right
committed while he or she is the owner of it.
The text of the provision limits those who may bring a copyright
infringement action to “legal and beneficial owners of an exclusive
right under a copyright.” See John Wiley & Sons, Inc. v. DRK Photo,
882 F.3d 394, 405 (2d Cir. 2018); HyperQuest, Inc. v. N’Site Sols., Inc.,
632 F.3d 377, 381 (7th Cir. 2011); Silvers v. Sony Pictures Ent., Inc.,
402 F.3d 881, 884 (9th Cir. 2005) (en banc). Cf. Saregama India Ltd.
v. Mosley, 635 F.3d 1284, 1297 (11th Cir. 2011) (stating that the
holder of a nonexclusive right lacked statutory standing).
The words “exclusive right under a copyright” refer to the
exclusive rights listed in § 106. See John Wiley & Sons, 882 F.3d at
402; HyperQuest, 632 F.3d at 382; Silvers, 402 F.3d at 885. To have
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24-12482 Opinion of the Court 9
statutory standing, a plaintiff does not need to be the owner of all
the exclusive rights comprised in a copyright; it only needs to be
the owner of “that particular right” which the defendant has
allegedly infringed. See Minden Pictures, Inc. v. John Wiley & Sons,
Inc., 795 F.3d 997, 1003 (9th Cir. 2015); HyperQuest, 632 F.3d at 382;
Eden Toys, Inc. v. Florelee Undergarment Co., Inc., 697 F.2d 27, 36 (2d
Cir. 1982); 1 Paul Goldstein, Goldstein on Copyright § 15.5.1 & n.19
(3d ed. & 2026-1 supplement). A copyright plaintiff bears the
burden of proving that he is the owner of that right to establish his
standing. See DRK Photo v. McGraw-Hill Global Educ. Holdings, LLC,
870 F.3d 978, 986 (9th Cir. 2017); Urbont v. Sony Music Ent., 831 F.3d
80, 88 & n.6 (2d Cir. 2016); HyperQuest, 632 F.3d at 385.
Under the Copyright Act of 1976, the bundle of exclusive
rights that comes with a copyright is divisible. See N.Y. Times Co.,
Inc. v. Tasini, 533 U.S. 483, 495–96 (2001); 3 Melville B. Nimmer &
David Nimmer, Nimmer on Copyright § 10.02 (Oct. 2025 update);
2 William F. Patry, Patry on Copyright § 5:123 & n.7 (Mar. 2026
update). That means that “[a]ny of the exclusive rights . . .
including any subdivision of any of the rights specified in section
106, may be transferred . . . and owned separately.” 17 U.S.C.
§ 201(d)(2).
For example, the author of a novel could transfer to a
publisher the exclusive right to prepare derivative works based on
the novel while retaining all other rights under § 106.
Alternatively, the author could subdivide her derivative-works
right by transferring to a movie studio the exclusive right to
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10 Opinion of the Court 24-12482
prepare a screenplay based on the novel and transferring to a
publisher the exclusive right to create comic books based on the
novel. In both scenarios, the author, the publisher, and the movie
studio are all “copyright owners” under the Act. See 17 U.S.C. § 101
(“‘Copyright owner’, with respect to any one of the exclusive rights
comprised in a copyright, refers to the owner of that particular
right.”). Accord 3 Nimmer § 10.02 & n.5; 2 Patry § 5:123 & n.7. And
each “would be entitled to sue for infringement of its particular
right.” HyperQuest, 632 F.3d at 382.
There is “no limit on how narrow the scope of licensed
rights may be and still constitute a ‘transfer’ of ownership, as long
as the rights thus licensed are ‘exclusive.’” 3 Nimmer § 10.02 & n.9.
An exclusive license to a newsstand dealer to
distribute a given edition of a given newspaper at a
designated corner on a particular afternoon would
convey to such dealer the “ownership” of such right,
so that if another dealer were to . . . distribute the
same paper at the same time and place, the first dealer
could sue the second for infringement of his
distribution right.
Id. Here’s another example. The copyright holder of a musical
could grant a theater the exclusive right to publicly perform the
musical on Monday through Thursday, while retaining for itself
the exclusive right to publicly perform the musical on Friday,
Saturday, and Sunday. In that case, if a third party performed the
musical on a Monday, only the theater could sue him for
infringement. And if a third party performed the musical on a
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24-12482 Opinion of the Court 11
Friday, only the copyright holder could sue him for infringement.
See id.
B
Sometimes, a copyright holder will use different words to
convey that she is transferring ownership of an exclusive right.
Rather than “transferring the exclusive right to prepare a screenplay
based on the novel,” the author might “grant the movie studio an
exclusive license to prepare a screenplay based on the novel.” The
effect is the same. Under the Copyright Act, an “exclusive license”
is a “transfer of copyright ownership.” 17 U.S.C. § 101. Accord 2
Patry § 5:101 (“A copyright owner may transfer copyright
ownership by assignment or exclusive license, the two being
synonymous. An exclusive license therefore is copyright
ownership.”) (footnote omitted). Thus, an exclusive licensee is an
“owner of an exclusive right,” § 501(b), and can sue for
infringement of that right. See Eden Toys, 697 F.2d at 32.
Because the grant of an exclusive license is a transfer of
copyright ownership, an exclusive license “is not valid unless . . .
[it] is in writing and signed by the owner of the rights conveyed” or
her agent. See 17 U.S.C. § 204(a). The “purpose of [§] 204(a), like
the Statute of Frauds, is . . . to protect copyright holders from
persons mistakenly or fraudulently claiming oral licenses or
copyright ownership.” Imperial Residential Design, Inc. v. Palms Dev.
Grp., Inc., 70 F.3d 96, 99 (11th Cir. 1996) (parentheses omitted).
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12 Opinion of the Court 24-12482
On the other hand, a nonexclusive license is not a “transfer
of copyright ownership.” 17 U.S.C. § 101. “In essence, a nonexclu-
sive license is a covenant not to sue [for infringement] so long as
the licensee uses the work in the manner contemplated” by the
parties’ agreement. See 2 Patry § 5:127 & n.4. The holder of a
nonexclusive license is not an owner of an exclusive right and
therefore lacks statutory standing to sue for infringement. See
Saregama, 635 F.3d at 1297.
Just because a contract or other writing says that the
copyright holder is granting the licensee an “exclusive license” or
“exclusive right” does not necessarily mean that she is. “The fact
that [an agreement] uses the phrase ‘exclusive license’ or its
equivalent . . . is something of which [a court must] take note, but
it is not dispositive. It is the substance of the agreement, not the
labels that its uses, that controls our analysis.” HyperQuest, 632 F.3d
at 383. Accord Righthaven LLC v. Hoehn, 716 F.3d 1166, 1169 (9th
Cir. 2013) (“When determining whether a contract has transferred
exclusive rights, we look not just at the labels parties use but also
at the substance and effect of the contract.”). To constitute an
exclusive license, the copyright holder must “permit[ ] the licensee
to use the protected material for a specific use and . . . promise[ ]
that the same permission will not be given to others.” I.A.E., Inc.
v. Shaver, 74 F.3d 768, 775 (7th Cir. 1996) (emphasis added). See also
Minden Pictures, 795 F.3d at 1005 (agreeing with Shaver).
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C
We first address Great Bowery’s contention that Conse-
quence is not permitted to challenge its standing under § 501(b).
We then turn to the district court’s summary judgment order.
1
Great Bowery argues that, under our decision in Imperial
Residential Design, 70 F.3d at 99, Consequence cannot challenge its
statutory standing because Ms. Leibovitz does not dispute that
standing. We are not persuaded.
In Imperial Residential Design, an architect designed a model
home. In 1988, he entered into an oral agreement with a developer
transferring all his rights in the design. Two years later, the
developer wanted to sue a competitor for copyright infringement,
so the architect and developer signed a written agreement ratifying
the 1988 oral agreement. See id. at 97. After litigation commenced,
the competitor challenged the developer’s standing because the
written agreement did not transfer the right to sue for past
infringements. See id. In response, the architect and developer
signed a second written agreement, which they said memorialized
their 1988 oral understanding to transfer all accrued claims. See id.
The district court refused to consider the second agreement and
dismissed the action. See id. at 98. The developer and architect
then filed a second lawsuit for infringement. This time, they
brought the suit as co-plaintiffs. The competitor again moved to
dismiss the developer for lack of statutory standing. See id.
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14 Opinion of the Court 24-12482
After an initial appeal and a remand to the district court, we
rejected the competitor’s standing challenge. We explained that
“the chief purpose of [§] 204(a), like the Statute of Frauds, is . . . to
protect copyright holders from persons mistakenly or fraudulently
claiming oral licenses or copyright ownership.” Id. at 99
(parentheses omitted). Thus, “where there is no dispute between
the copyright owner and the transferee about the status of the
copyright, it would be unusual and unwarranted to permit a third-
party infringer to invoke [§] 204(a) to avoid suit for copyright
infringement.” Id. (citing Eden Toys, 697 F.2d at 36). So we held
that, “where both the original owner and the transferee have joined
as plaintiffs in the same lawsuit[,] we will not let the alleged
infringer invoke [§] 204(a).” Id. Other circuits have issued similar
rulings. See Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 830 (3d
Cir. 2011); Billy-Bob Teeth, Inc. v. Novelty, Inc., 329 F.3d 586, 592–93
(7th Cir. 2003); Magnuson v. Video Yesteryear, 85 F.3d 1424, 1429 (9th
Cir. 1996).
Admittedly, the opinion in Imperial Residential Design is
somewhat nebulous as to its scope. But we do not understand the
language quoted above to mean that a copyright owner can, by
consent, confer a licensee standing to sue for infringement without
transferring an exclusive right. Rather, we believe the best reading
of Imperial Residential Design is that a defendant cannot challenge
the sufficiency of a writing under § 204(a). “We have pointed out
many times that regardless of what a court says in its opinion, the
decision can hold nothing beyond the facts of that case.” Edwards
v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010). And our
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24-12482 Opinion of the Court 15
understanding of Imperial Residential Design is bolstered by
decisions of our sister circuits and a leading copyright treatise.
For our holding in Imperial Residential Design, we cited Eden
Toys, 697 F.2d at 36. There, too, the defendant argued that the
licensee-plaintiff did not own the exclusive right that had been
infringed. In response, the licensee produced a signed writing that
allegedly ratified an oral transfer of rights that predated the
infringement. Given that § 204(a)’s purpose is to protect copyright
holders, the Second Circuit remarked that “it would be anomalous
to permit a third party infringer to invoke” the provision where
there is no dispute between the copyright holder and exclusive
licensee. See id. Nonetheless, it remanded the case for findings on
whether the licensor and plaintiff actually had an oral agreement
before the infringement. See id. In other words, even though the
licensor consented to the plaintiff’s suit against the infringer (by
signing the ratification), the plaintiff was not relieved of its burden
of proving that it owned the relevant exclusive right at the time of
the alleged infringement.
In Barefoot Architect, 632 F.3d at 830–31, the Third Circuit
resolved an equivalent issue in a similar manner. In response to
the defendant’s motion for summary judgment, the plaintiff
claimed that the copyright was orally transferred to him before the
infringement began, and the transfer was later codified in writing.
See id. at 827. The Third Circuit held that, even though § 204(a)
allows ratification of an oral transfer ab initio, the plaintiff had not
evinced the existence of a prior oral agreement. See id. at 831.
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16 Opinion of the Court 24-12482
Thus, the defendant was entitled to summary judgment because
no reasonable jury could conclude that the plaintiff owned the
copyright at the time of infringement. See id. at 833.
In both Eden Toys and Barefoot Architect, the defendant was
permitted to challenge whether the plaintiff owned the exclusive
right that the defendant allegedly infringed, even though the
copyright holder did not dispute the plaintiff’s standing. So here,
Consequence should be allowed to contest whether Great Bowery
owned exclusive rights as a result of the Artist Agreement or the
Authorization Letter.
Significantly, in recent years the Second and Ninth Circuits
have expressly rejected the argument that Great Bowery makes
here.
In Urbont, 831 F.3d at 83–84, the composer of a movie theme
song sued a recording artist who sampled it in a hip hop recording.
The artist argued that the composer could not prevail because he
created the song as a “work made for hire” for the movie studio.
See id. at 85. Like Great Bowery, the composer argued that the
artist could not challenge his standing because the movie studio
had “acquiesced” to his claim of ownership. See id. at 86. The
Second Circuit rejected the composer’s argument, explaining that
even if his characterization of the movie studio’s position was
correct, the studio’s acquiescence did not preclude the artist from
challenging the composer’s ownership. See id. at 87. The burden
was on the composer to “prove ownership not only as an element
of a copyright infringement claim, but also to assert their standing
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24-12482 Opinion of the Court 17
to bring suit.” Id. at 88 n.6. Therefore, the artist could “challenge
the validity of the underlying ownership transfer.” Id. at 88. The
Second Circuit equated the oft-cited sentence from Eden Toys with
the proposition that “[c]ourts are hesitant to allow an outside
infringer to challenge the timing or technicalities of the copyright
transfer.” Id. at 87 (quoting Lyrick Studios, Inc. v. Big Idea Prods., Inc.,
420 F.3d 388, 394 (5th Cir. 2005)) (emphasis added).
Citing Urbont, the Ninth Circuit rejected the same argument
in DRK Photo, 870 F.3d at 986. It explained that, “[a]lthough a third
party may not raise noncompliance with . . . § 204(a)’s writing
requirement as a defense to a copyright transfer where the parties
to the transfer do not dispute its existence, a third party is not
foreclosed from challenging a plaintiff’s ownership for purposes of
standing[.]” Id. (citations omitted).
According to the Nimmer treatise, the rule barring a third-
party defendant from contesting a written transfer of rights
“applies solely to the context of which writings qualify as a
transfer—it cannot confer standing absent proof of the requisite
writing altogether.” 3 Nimmer § 10.03 (footnotes omitted). The
treatise cites Judge Buchwald’s words with approval: “[W]here
defendants seek to raise a meaningful challenge to the plaintiff’s
infringement claim by positing ownership in a third party, the
seeming absence of a dispute between the putative owners should
not forestall such a challenge.” Id. (quoting Urbont v. Sony Music
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18 Opinion of the Court 24-12482
Ent., 100 F. Supp. 3d 342, 349 (S.D.N.Y. 2015), vacated in part on other
grounds, 831 F.3d 80 (2d Cir. 2016)).2
The reading of Imperial Residential Design urged by Great
Bowery would “lead to the anomalous result of permitting
copyright infringement plaintiffs to proceed even where they may
lack standing to sue simply because [a licensor] has not challenged
the validity of their copyright.” Urbont, 831 F.3d at 88 n.6. That
view is untenable and unsupported by any copyright authorities.
Under Imperial Residential Design, a defendant cannot defeat
a claim of copyright ownership by showing that a written copyright
transfer didn’t satisfy the requirements of § 204(a) when the parties
to the writing do not dispute its satisfaction. But Consequence
does not make such an argument here. It instead asserts that Great
Bowery lacks an ownership interest because Ms. Leibovitz did not
actually transfer one. Because Great Bowery must ultimately
prove that it owns the exclusive right that was allegedly infringed,
Consequence may challenge Great Bowery’s copyright infringe-
ment claim on this ground.3
2 The Patry treatise asserts that the entire line of cases “barring a third-party
defendant from contesting the validity of an assignment,” including Imperial
Residential Design, is “erroneous.” See generally 2 Patry § 5:114. It reasons that
a copyright infringement defendant must be permitted to challenge a
plaintiff’s § 501(b) standing on any ground, including “the sufficiency of an
assignment” under § 204(a). See id.
3 Our understanding of Imperial Residential Design is consistent with our recent
decision in DISH Network L.L.C. v. Fraifer, No. 24-10223, ____ F.4th ____, 2026
WL 959813 (11th Cir. 2026). In DISH, the defendants challenged the district
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2
Great Bowery asserts that the Artist Agreement granted it
ownership of exclusive rights. Paragraph 1 of the Artist Agreement
reads as follows:
Subject to the terms and conditions of this
Agreement, [Ms. Leibovitz] hereby grants to Trunk
Archive the exclusive worldwide right to license,
market, and promote the Licensed Images (as defined
below) for all uses in any and all media.
Notwithstanding the foregoing, nothing contained
herein shall restrict [Ms. Leibovitz’s] right to
collaborate with or deliver any Licensed Images to
Robert Pledge and/or Contact Press Images for use
in special projects or other endeavors [Ms. Leibovitz]
deems of interest. [Ms. Leibovitz] shall make best
efforts to notify Trunk Archive in advance if the use
of a Licensed Image by Robert Pledge and/or Contact
Press Images may conflict with the rights granted
herein.
court’s determination that the licensing agreements between the licensor and
plaintiff properly transferred the exclusive rights to distribute and publicly
perform the works. See id. at *5. We held that the defendants were precluded
from making that challenge because a representative of the licensor affirmed
in a declaration that it had transferred those § 106 rights. See id. In other
words, the defendants wanted to challenge the sufficiency of the writing
between the licensor and plaintiff. Here, Consequence argues that the Artist
Agreement did not transfer any § 106 rights, and that the Authorization Letter
supports its interpretation. Great Bowery must prove its ownership interest,
and Consequence is not precluded from challenging that interest.
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20 Opinion of the Court 24-12482
D.E. 36-1.
In the view of the district court (and that of Consequence),
Paragraph 1 dispositively demonstrates Great Bowery’s lack of
standing. See D.E. 45 at 3. The main problem for Great Bowery,
the court reasoned, is that Ms. Leibovitz overrode the supposed
grant of exclusive rights by “retain[ing] for herself the right to use
or deliver the photographs for any purpose . . . that [she] ‘deems of
interest.’” Id. Because “Ms. Leibovitz clearly retained the right to
grant licenses to other parties at her own discretion” and “retained
the same rights for herself,” the court concluded that she had not
granted Great Bowery an exclusive license. See id. at 5 n.4, 7.
That is not quite right. Ms. Leibovitz’s retention of certain
rights does not automatically doom Great Bowery’s asserted status
as an exclusive licensee. As noted, the § 106 rights are divisible and
subdivisible. So even if Ms. Leibovitz retained for herself the
exclusive right to “deliver” her photographs “to Robert Pledge
and/or Contact Press Images for use in special projects or other
endeavors,” it is possible that Great Bowery was granted other
exclusive § 106 rights to the same photos. When one person owns
some exclusive rights under a copyright and another person owns
other exclusive rights, each is “entitled to sue for infringement of
its particular right.” HyperQuest, 632 F.3d at 382.
Consequence argues in the alternative that Great Bowery
“could not have received an exclusive license” to the photographs
because Condé Nast held a “nonexclusive right to publish and print
each of the [photographs] as they appeared in [its] publications . . .
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24-12482 Opinion of the Court 21
at any time for the full term of the copyright.” Appellees’ Br. at 17
(internal quotation marks omitted). Therefore, Consequence
contends, “[a]ny license granted to [Great Bowery] would
necessarily be nonexclusive because it would coexist with Condé
Nast’s rights.” Id.
This argument is also incorrect. To have statutory standing
under the Copyright Act, the plaintiff must be the legal or beneficial
owner of an exclusive right afforded by § 106. See John Wiley &
Sons, 882 F.3d at 402. When the original copyright holder grants
an exclusive license, she is really transferring ownership of some
stick in the bundle of § 106 rights. See 1 Goldstein § 15.5 & n.7.
That is why an exclusive licensee has statutory standing. See id. On
the other hand, when the owner grants a nonexclusive license, she
is merely giving the licensee permission to exercise one of her
rights in a nonexclusive manner. See Shaver, 74 F.3d at 775; Davis,
505 F.3d at 99. The granting of such permission does not change
the fact that the copyright holder remains the owner of the § 106
rights in question. See 17 U.S.C. § 101 (defining “transfer of
copyright ownership”); HyperQuest, 632 F.3d at 384 (explaining that
a licensor who grants a nonexclusive license “remains the owner”
of the right licensed). And because she is the owner, she may
subsequently transfer her ownership interest in one of the § 106
rights by granting someone else an exclusive license. See 3 Nimmer
§ 10.02 & n.31.3.4
4 This scenario is specifically contemplated by 17 U.S.C. § 205(e)(1).
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22 Opinion of the Court 24-12482
To illustrate, suppose “A” is the copyright holder of a
painting. “A” grants “B” a nonexclusive license to make and sell
prints of the painting in Florida. Then, “A” grants “C” the
worldwide exclusive license to reproduce the painting. In this
scenario, “C” now owns the exclusive right to reproduce the
painting and can sue third parties who infringe that right. As long
as “B” stays within the scope of her nonexclusive license, “C” might
not be able to sue “B.” See generally § 205(e)(1); 3 Nimmer
§ 10.07[B]. But the fact that “B” has permission to make prints in
Florida does not change the status of “C” as the owner of the
reproduction right.
By the same token, Condé Nast’s nonexclusive license does
not affect whether Great Bowery received an exclusive license (an
issue we do not decide in this opinion). So the particular language
from the Condé Nast agreements quoted above is not material to
whether Great Bowery is the owner of an exclusive right.
The district court’s order granting summary judgment in
favor of Consequence relied on a misunderstanding of the law. We
therefore vacate that order and remand for further proceedings.
D
On remand, the district court should also reconsider the
import—if any—of the Authorization Letter. To the extent Great
Bowery contends that the Letter is an independent grant of
exclusive rights, the court should analyze that argument in light of
this opinion. And to the extent the Letter serves to illuminate the
meaning of the Artist Agreement, the court may need to first
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24-12482 Opinion of the Court 23
determine whether the Letter is admissible as parol evidence. To
do that, the court will need to decide which state’s law governs the
Agreement.
“As a general proposition, courts apply the same
constructional rules to copyright contracts as they apply to
contracts generally.” 1 Goldstein § 5.3.2. Accord 3 Nimmer § 10.08
& n.2.3; Kennedy v. Nat’l Juv. Det. Ass’n, 187 F.3d 690, 694 (7th Cir.
1999). See also Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477
F.3d 383, 392 (6th Cir. 2007); Boosey & Hawkes Music Publishers, Ltd.
v. Walt Disney Co., 145 F.3d 481, 487 (2d Cir. 1998). State contract
law “is to be applied to the extent its use is not preempted by nor
contrary to the policies of the . . . Copyright Act[ ].” Fantastic Fakes,
Inc. v. Pickwick Int’l, Inc., 661 F.2d 479, 483 (5th Cir. Unit B 1981).
Accord Great Minds v. Office Depot, Inc., 945 F.3d 1106, 1110 (9th Cir.
2019) (same); Walthal v. Rusk, 172 F.3d 481, 485 (7th Cir. 1999)
(same). At this point, the parties have not provided any material
information as to which law governs the Artist Agreement.
E
The parties raise several other arguments regarding Great
Bowery’s standing.
For example, Great Bowery contends that, because the
Artist Agreement granted it the “exclusive worldwide right to
license, market, and promote” Ms. Leibovitz’s photographs, it “had
the exclusive right . . . to authorize Consequence to reproduce,
distribute, and display that work.” Appellant’s Br. at 9. Conse-
quence responds that even if Great Bowery is Ms. Leibovitz’s
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24 Opinion of the Court 24-12482
exclusive licensing agent, “the exclusive right to authorize others
to use the copyright” is “not a § 106 right.” Appellees’ Br. at 14
(internal quotation marks omitted).5
For its part, Consequence asserts that, per the Condé Nast
agreements, “all rights” in the photographs were “retained by AL
Studio,” and “[t]here is no written transfer in the record of any
rights in the [photographs] from AL Studio to [Ms.] Leibovitz or
Great Bowery.” Id. at 15–16 (brackets and internal quotation marks
omitted). Great Bowery argues that, “at minimum, [it is] a
beneficial owner of an exclusive copyright.” Appellant’s Br. at 24.
The district court did not reach any of these arguments
because it believed that Ms. Leibovitz’s retention of rights
necessarily meant that Great Bowery was not the owner of an
exclusive right. Because the court did not consider the parties’
other arguments, we decline to address them on appeal. In general,
5 We recognize that the district wrote the following in its summary judgment
order: “[T]he problem for [Great Bowery] is twofold. First, the exclusive
rights conveyed [in the Artist Agreement] are not identical to any of the [s]ix
[e]xclusive [r]ights [c]onferred by [c]opyright.” D.E. 45 at 3. We do not
believe, however, that the court fully considered Great Bowery’s and
Consequence’s respective points on this issue. Compare generally Minden
Pictures, 795 F.3d at 1003 (“The right ‘to authorize’ these acts is also an
‘exclusive right’ under the Act.”), with 6 Patry § 21:21 & n.9 (citing Venegas-
Hernandez v. Asociación de Compositores y Editores de Música Latinoamericana
(ACEMLA), 424 F.3d 50, 57–60 (1st Cir. 2005)). Moreover, to the extent that
the court believed that a copyright plaintiff must own an exclusive right that
is “identical” to one of the § 106 rights, that is not correct because the § 106
rights are subdivisible.
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24-12482 Opinion of the Court 25
“a court of appeals will not consider issues not reached by the
district court, especially where the issues involve questions of fact.”
Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1372 n.5 (11th Cir.
1998) (citing Singleton v. Wulff, 428 U.S. 106, 120 (1976)). See also
Stewart v. Dep’t of Health & Human Servs., 26 F.3d 115, 115–16 (11th
Cir. 1994). As noted, the parties did not take any depositions during
discovery. So we are hesitant to resolve these issues on the record
as it stands.
IV
We affirm the denial of Great Bowery’s motion to amend
the complaint, vacate the district court’s order granting summary
judgment in favor of Consequence, and remand for proceedings
consistent with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.
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