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H-E-L-L-O Copyright Lawsuit!


On 01/18/2013, freelance photographer Brian Masck filed a civil lawsuit in the U.S. District Court of the Eastern District of Michigan alleging copyright infringement of his photograph of Desmond Howard striking the Heisman pose in the 1991 Michigan versus Ohio State football game.  Named defendants in the suit include Desmond Howard himself, Sports Illustrated, Nissan North America, Getty Images, Inc., Champions Press, L.L.C., Fathead, Wal-mart, Amazon.com and Photo File.

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical and artistic works.  Copyright specifically grants creators of such original works exclusive rights to reproduce, display, perform, distribute copies or prepare derivative works based upon the copyrighted material (subject to some important rights granted to the public). Copyrights are automatically granted to the authors of creative works at the time of creation, regardless of whether or not they register their mark with the United States Copyright Office.  Registration however, is necessary to sue someone from infringing your work.  Masck registered his photo with the Copyright Office in 2011.

In his complaint, Masck notes that his photograph “has become an iconic image” in college football.  To support this assertion, Masck includes in his complaint images of President Barack Obama, the First Lady, and “a dog owner” re-enacting the Heisman pose.  Masck suggests the popularity of this pose resonates from his photo of Howard, as opposed to the popularity of the Trophy itself by noting that when people imitate the Heisman pose, they imitate the pose struck by Howard, with one foot up, as opposed to the pose of the actual trophy, which has both feet on the ground.  Masck’s complaint contends that “without this perfect shot, from this particular angle, the concept of the Heisman pose most likely would never have gained the resonance and cultural momentum it has today.”

The complaint begins by recounting the making of the Heisman pose photograph, beginning at Masck’s birth in 1962, describing his childhood makeshift darkroom, detailing his time at the University of Michigan, and ending in his “shot of a lifetime” on November 23, 1991.  The complaint concludes with allegations that Masck’s iconic photo has been reproduced in violation of his copyright. Masck notes that in order to detect unauthorized reproductions of the photo, he extended the lettering on the football, and removed the branding from the glove on Howard’s right hand.

Any person who violates the exclusive rights granted to the owner of the copyright, for example, by reproducing unauthorized copies of a photo, is an infringer of the copyright.  Copyright infringement is a federal violation that can be prosecuted as a criminal offense, but is more often brought in actions in civil lawsuits as is the case here.  Those found liable for copyright infringement may be forced to stop the infringing activity, compensate the copyright owner, and pay statutory damages up to $150,000.

Furthermore, even though the photograph is of Howard, this does not necessarily mean that he has any copyrights to the image. Usually the photographer is the sole owner of the copyright in the photograph, unless he was a “work for hire” and/or contractually bound to transfer the photo copyright to the subject.  However, local personality rights (in other words the right of publicity) may limit the use of a photo without permission of the subject.  So Howard may have publicity rights in the photo, but not enforceable copyrights.

Defendants were served with copies of the complaint on January 18th and have 21 days to respond.

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