The District Court of Massachusetts denied plaintiff's motion for class certification in a copyright infringement suit by three freelance photographers against Copyright Clearance Center Inc. Defendant acts as an agent for magazine publishers, licensing rights to photocopy magazine articles. Plaintiffs allege that they, like most freelance photographers, grant limited-use licenses to magazine publishers while retaining for themselves all rights beyond one-time publication; therefore defendant infringes their copyright by unauthorized copying, licensing, or sales of images used in the articles.Plaintiffs brought a motion under Fed. R. Civ. P. 23 to certify a class action. The proposed class includes holders of copyright in at least one photographic image, created after January 1, 1978, appearing in a publication in the defendant's database and which without prior authorization from the copyright holder was copied, licensed, sold, or authorized to be copied by defendant. Pursuant to Rule 23(a), class certification requires a showing, among other things, that the class is so numerous that joinder of all members in the action is impracticable, and that the claims or defenses of the representative parties are typical of the claims or defenses of the class.
Plaintiffs introduced evidence that there are approximately 20,000 freelance photographers working in the United States, and that it is standard practice in the industry for freelance photographers to own the copyright in their images.
The court ruled that these "bare assertions" do not provide a sufficient basis for the court to determine the size of the proposed class, and hence whether joinder of all class members is impracticable. The court also noted that there is insufficient evidence to determine whether the limited licenses granted by plaintiffs to magazine publishers are typical of the proposed class. The court therefore denied the motion for class certification.