Walmart Inc. can’t bow out as a defendant in a commercial photographer’s copyright lawsuit against the Procter & Gamble Co.
Annette Navarro McCall sued Procter & Gamble in 2017 for continuing to use her images on products and marketing materials without a license. Walmart said all of the licenses at issue were long-expired when Navarro added the company as a co-defendant in October. But Navarro alleges newer, separate acts of infringement that aren’t time-barred, the U.S. District Court for the Southern District of Ohio said Jan. 10.
The case highlights that new infringing acts can reset the three-year clock during which a copyright holder must sue. A copyright holder can’t sue over new harm from old infringement actions but can sue over infringing acts that occurred later, the court said.
Navarro’s lawsuit said Procter & Gamble “almost exclusively” used her photos on Olay-branded materials for 14 years. She said she learned of the infringement in June 2015, when an agency notified her that companies wouldn’t hire models she had photographed while their images continued to appear on boxes of Olay Supersonic. Proctor & Gamble’s license to those photos expired nearly two years prior, she alleges.
Navarro said the company continued using several other photos whose licenses for use expired from 2013 to 2015. The company also acquired licenses to her photos from modeling agencies without her permission, and exceeded geographic constraints in licenses by using the images outside of North America, the suit claims.
Navarro added Walmart and other unnamed retailers and distributors as a defendants in a third amended complaint. The stores reproduced, displayed, and distributed the copyrighted works without authorization, she said.
Walmart argued an infringement commences upon the first act in a series of ongoing infringement, and that it had sold the products for more than three years since the last license expired. But the court said that “when an infringement ‘commences’ is irrelevant,” because the complaint accused Walmart of separate acts of infringement within the statute of limitations.
Procter & Gamble refuse to provide other distributors of the products, Navarro’s complaint said.
Judge Timothy S. Black wrote the opinion.
Graydon Head & Ritchey LLP represent Navarro. Dinsmore & Shohl LLP represent Procter & Gamble.
This case is Navarro v. Procter & Gamble Co., 2019 BL 9267, S.D. Ohio, No. 17-406, 1/10/19