License to Sublicense: The Legal Possibility of Impliedly Sublicensing a Copyrighted Work

Abstract

On March 13, 2020, in Photographic Illustrators Corp. v. Orgill, Inc., the U.S. Court of Appeals for the First Circuit held that, within copyright law, an implied sublicense is legally possible where a licensee’s nonexclusive license permits unrestricted sublicensing. This was an issue of first impression among the federal courts of appeals. This Comment argues that the First Circuit correctly concluded that implied sublicenses are legally possible and that the legal test for determining whether an implied sublicense exists must consider the relationship between the licensee and sublicensee. Nevertheless, because sublicensing necessarily excludes the copyright owner, applying a modified form of the stringent three-element test the court eschewed would serve as a better guide for future cases analyzing this issue. This tripartite formula, incorporating request, delivery, and intent, creates a framework that would ensure that the intent portrayed by the licensee is deliberate and that privity exists between the two parties to the sublicensing agreement.