Copyright Enforcement: If You Don’t Have Standing, You Might as Well Sit Down

Standing is a threshold requirement in any federal lawsuit, and copyright infringement actions are no exception. Under the Copyright Act (17 U.S.C. §§ 101, et seq.), only certain parties are eligible to sue for infringement, a limitation that frequently becomes contested in cases involving licenses, licensing agencies, or what have become known as “copyright trolls.”

A recent federal appeals court decision involving world-famous portrait photographer, Annie Leibovitz, offers fresh insight on the issue of who has standing to pursue a copyright infringement claim. But first some background on the applicable law.

Section 501(b) of the Copyright Act provides that “[t]he legal or beneficial owner of an exclusive right under a copyright is entitled…to institute an action for any infringement of that particular right.” This provision incorporates two key concepts:

1. Ownership of a right under copyright law – the plaintiff must hold one of the six exclusive rights enumerated in § 106 (reproduction, distribution, adaptation, public display, public performance, or (for sound recordings) digital distribution or performance). The requirement reflects the broader principle that copyright ownership is divisible. § 201(d)(2) allows any of the bundle of rights to be “transferred… and owned separately,” such that multiple parties can simultaneously hold different exclusive rights in the same work.
2. Exclusivity – the right must be exclusive, meaning the holder has the right to exclude others from exercising that specific right.

Accordingly, courts have long held that:

• Assignments transfer ownership and confer standing
• Exclusive licenses also confer standing
• Nonexclusive licenses do not confer standing

Exclusivity must be evaluated with respect to specific rights. If the licensee holds an exclusive right to exploit a particular § 106 right—such as licensing for distribution (including by publication) that interest will be sufficient to establish standing. But the exclusivity sufficient to confer standing is not limited to a grant of all of the rights conferred by any of the six categories of rights enumerated in § 106. An exclusive license to any subdivision of any of those categories of rights would be sufficient. For example, an author could subdivide her adaptation rights by transferring to a movie studio the exclusive right to prepare a screenplay based on her novel and could, at the same time, transfer to a publisher in France the exclusive right to prepare a French translation of her work. In this case, each of the movie studio and the French publisher would be “copyright owners” under the Act, with standing to pursue claims against infringers of their respective rights. 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.

This nuanced approach rejects overly formalistic interpretations of exclusivity and instead focuses on functional control over specific rights. Ownership is not monolithic but modular. Standing, therefore, depends on careful identification of who owns which piece of the copyright bundle—and whether that piece encompasses the right allegedly infringed.

All of this is to say that a fundamental issue at the outset of any copyright infringement action may not be a copyright issue at all, but rather a question of contract interpretation, an issue that often turns on careful parsing of contractual language.

While copyright law and enforcement are the exclusive province of Congress and the federal courts, contract law is a state law matter, with the exception of one principle addressed in §204(a) of the Copyright Act – transfers of copyright ownership (including exclusive licenses) must be in writing and signed by the owner. Non-exclusive licenses are enforceable, but they do not confer standing sufficient to support a copyright infringement suit.

Included below are some general overarching principles common to the contract law of most states, though the precise application may vary from state to state:

• Construction of a written contract is a matter of law for the court
• Primary task is to ascertain and give effect to the intent of the parties
• A contract that is clear and unambiguous will be enforced as written
• When a contract is susceptible to two or more reasonable interpretations, resolution of the ambiguity is for the trier of fact.
• In practice, however, it will be resolved by the court if rules of construction do not require the court to go beyond the four corners of the document
  • Giving terms their ordinary meaning; Unless they have a special meaning in the industry or trade (sale vs. license)
  • Construing a term in context of other terms
  • Construing the contract so as to be consistent with relevant law
  • Construing any ambiguity against the drafter (the one who created the problem should not be permitted to benefit from it)
• Contract is read as a whole so as to give meaning and effect to every provision and avoid interpretation that would render any specific word or phrase meaningless
• Practical construction – in some states, when a term is ambiguous, how the parties have acted, post contract, is considered an indication of what they must have intended.

Back to the Case Involving Annie Leibovitz

The dispute at issue in this case arose from a photography licensing arrangement. In 2014, Annie Leibovitz entered into an “Artist Agreement” with Trunk Archive (operated by Great Bowery Inc.), granting the agency the “exclusive worldwide right to license, market, and promote” certain photographs, but Ms. Leibovitz reserved the right to collaborate with or deliver any of those images to certain specified entities for use in special projects or other endeavors she deems of interest. In addition to the licensing agreement, in 2018, Leibovitz had provided Great Bowery with a letter authorizing it to act on her behalf in copyright enforcement matters:

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 . . . 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. . . . 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. . . .

In subsequent years, Leibovitz photographed subjects for Vanity Fair under agreements that reserved unspecified rights to her studio. Later, Great Bowery discovered that some of these photographs appeared online without authorization, including on websites operated by the defendants (Consequence Sound and related entities).

Great Bowery sued for copyright infringement in its own name, hence the case caption: Great Bowery, Inc. v, Consequence Sound LLC, et al. (11^th Cir. May 2026).

The defendants moved for summary judgment, arguing that Great Bowery lacked statutory standing because it was not the owner of an exclusive right. The district court agreed, reasoning that Leibovitz’s retention of collaboration rights meant that Great Bowery’s license was not exclusive. Accordingly, the court held that Great Bowery lacked standing under § 501(b) and dismissed the case.

The Eleventh Circuit vacated the grant of summary judgment, holding that the district court had misapplied copyright law.

At the heart of the appellate court’s reasoning is the principle that copyright rights are divisible. The court emphasized that:

• Different parties can simultaneously hold different exclusive rights in the same work;
• A grant of exclusivity as to one set of rights is not negated merely because the copyright owner retains other rights.

Great Bowery reinforces that standing turns on ownership of specific exclusive rights, not generalized notions of agency or authorization. The decision aligns with the statutory language and longstanding precedent requiring that plaintiffs be legal or beneficial owners of an exclusive right.

The Eleventh Circuit’s opinion corrects a common lower-court error: treating any retained rights as evidence that a license is nonexclusive. Instead, the relevant inquiry is whether the licensee has exclusive control over a defined subset of rights.

This approach has important practical consequences:

• Licensing agreements can include carve-outs without sacrificing enforcement rights;
• Exclusive licensees need not hold all rights to maintain standing;
• Courts must engage in granular analysis rather than categorical conclusions.

Practical Guidance for Establishing Standing

Drawing from Great Bowery and the statutory framework, practitioners should consider the following when assessing or establishing standing, and/or if you are negotiating/drafting terms of a license or evaluating a document claimed to support standing:

• Identify the Specific Right at Issue – which of the § 106 rights has been infringed upon and does the plaintiff own that right exclusively
• Confirm a Valid Transfer – is the grant in writing and signed?
• Analyze the License Agreement in Detail – is the grant unambiguously exclusive, or are there carve-outs or reserved rights (there is a tendency in drafting to use the softest possible language to arguably convey the desired rights rather than the strongest possible language so as to minimize push back from the other side)
• Distinguish Between Enforcement Authority and Ownership – authorization letters may support enforcement, but cannot substitute for ownership of an exclusive right unless coupled with a qualifying transfer. Alone, they are not enough.

• Watch out for insufficient representations, e.g., Party X owns and/or controls exclusive rights in the subject work (which exclusive rights?)
• Watch out for a power of attorney or letter of representation/authorization that is silent as to the rights held by the represented party
• Watch out for a sweeping claim that fails to mention exclusivity, e.g., Party X has the worldwide right to license and distribute the work.

Finally, know that if you are a defendant, there is no reason to negotiate a settlement with any claimant until they have established that they have (or the party they are representing has) standing. Settling with the wrong party – one that does not have a sustainable claim – accomplishes nothing.