Almut Reinicke v. Creative Empire LLC

MEMORANDUM The parties agree that the Ninth Circuit’s test for whether an implied, nonexclusive copyright license can be granted is set forth in Asset Marketing Systems, Inc. v. Gagnon, 542 F.3d 748, 754-55 (9th Cir. 2008). “Generally, a ‘copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement’ and can sue only for breach of contract.” Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1121 (9th Cir. 1999) (quoting Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998)),. overruling on other grounds recognized by Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 979 (9th Cir. 2011); see also Effects Assocs., Inc. v. Cohen, 908 F.2d 555 , 559 (9th Cir. 1990) (holding that an implied grant of a nonexclusive license to use a copyrighted work precludes a copyright infringement claim).

Here, the dispute centers around Rein-icke’s intent. “The relevant intent is [Rein-icke’s] objective intent at the time of the creation and delivery of the [work] as manifested by the parties’ conduct.” Asset Mktg., 542 F.3d at 756 (citations omitted). Reinicke was initially hired for a small translation project;…