Bergt v. McDougal Littell, No. 06 C 4645, 2006 WL 3782919 (N.D. Ill. Dec. 21, 2006) (Lefkow, J.).

Judge Lefkow denied defendants’ motion to dismiss plaintiff’s copyright and fraud case which alleged that defendants’ use of plaintiff’s copyrighted painting "Primavera" in textbooks exceeded the number of copies allowed by the parties’ license agreement.  Defendants sent plaintiff, via his agent ("Agent"), a request to use copies of his painting in a run of no more than 40,000 textbooks.  Agent responded shortly thereafter with a document labeled "Invoice" which granted defendants the right to use Primavera in textbooks without specifying any limitations, for example limiting use to the run of 40,000 textbooks as per defendants’ initial request.  Defendants argued that Agent’s letter was a counteroffer which changed the terms of the parties’ license.  But the Court held that defendants’ initial letter, specifying the price and the limited run, was an offer and that Agent’s letter was the acceptance.  The Court reasoned that Agent’s letter did not require a response, suggesting it was an acceptance, and that defendants could not have reasonably believed that Agent was modifying the offer to allow unlimited use of Primavera, instead of a limit of 40,000 copies, without increasing the $200 license fee.

There is also what appears to be a similar case, although brought by a different plaintiff, addressed in this post.