Photographer’s copyright suit lists his subject as defendant










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US photographer Brian Masck has filed suit against several parties over unauthorized and unpaid use of a photograph he shot 22 years ago that has since become an iconic image recognizable to almost any US sport fan. Among the defendants is the subject of the photo himself, Desmond Howard, who used the image on his own website.

In 1991, US freelance photographer Brian Masck captured an image of University of Michigan football star, Desmond Howard celebrating a score by emulating the pose of the Heisman Trophy (a player of the year award which he went on to win less than a month later). The image was first published in Sports Illustrated’s print magazine which credited Masck and paid him for use of the image. In the ensuing decades, however, the image has been used in everything from sports memorabilia and life-size posters to auto advertisements.

University of Michigan star, Desmond Howard striking a ‘Heisman’ pose after a touchdown against rival Ohio State University in 1991. Photograph by Brian Masck.

Masck says he never gave authorization for, nor received compensation from the other users of the photo, and has filed suit for copyright violation. Masck’s claim has been complicated somewhat by the fact that while he has long been aware of violations stretching back over 20 years, and even entered into a short-lived negotiation with Desmond Howard to sell him the copyright, he did not register the copyright with the US Copyright Office until 2011. The statute of limitations for copyright infringement is three years, which would appear to significantly limit the number of parties from which Masck can seek damages. Potentially more serious, however, is that as intellectual property law expert E. Leonard Rubina told the Detroit Free Press, ‘There is a defense to lawsuits called “laches“, meaning that the owner of rights has slept on his/her rights too long and therefore lost them’.

While the question of whether the subject of a photo can bypass permission of the copyright’s owner would seem to be a settled issue, at least in the US, the larger ramifications of such a long delay in pursuing a claim remain to be seen. For more details, you can read Masck’s actual complaint filed with the US District Court for Eastern Michigan here.

 







Comments


micahmedia

WHOA…another important piece that isn’t stated above: Getty has been selling the image. Starting in the past 10 years. That’s why it’s an issue now.

Getty–you know, the people who’s business is suing people for images they own? Yeah, they’re doing what they sue other people for.

After reading through the filing, I’d say there’s much merit to this case. Please read it before commenting either way!

EDIT: this lawsuit is about lots of folks trying to sell work featuring the picture without compensating the photographer, who never sold the copyright to anyone. The list is long and it’s in the filing. And it’s all within the last few years. Sounds like his gripe is legit.

The picture is worth money today and people are selling it–that sounds to me like whoever owns it deserves a cut. That’s the original photographer in this case.


wkay

I realize in the US that all photgraphs are automatically protected by copyright, but your right to claim damages is quite limited if you never formally file for copyright. DPReview should be nervous now that they have published the image, as their pockets are probably much deeper.


JavierDiaz

A recent ruling by the Supreme Court of France states that a photo lacking an element of “originality” nor having any “artistic creativity” does not allow the photographer to claim copyright protection.

(in French) http://www.legavox.fr/blog/maitre-anthony-bem/abandon-droit-auteur-lors-mise-10488.htm


micahmedia

…how’s that relevant here?


Deutsch

And what panel determines “artistic creativity”? That sounds very subjective, and in itself is flawed.


micahmedia

Yeah, courts don’t have the ability to determine artistic merit, nor should we force them to try to.


Timmbits

so by Brian Mask’s calculations, he is counting from 2011, and feels that he is within his 3 years time limit.

how many years are allowed to elapse, from time of publication, until a copyright filing is no longer valid? (like patents, you can file one and get your certificate (they’re always happy to take your money), but if it will hold up in court is another matter altogether)


nihon94

A lesson for others. Please keep posting follow on this case.

I know statue of liberty is this new statue of limitations? (I wanna take photo)


dmurphey

Sounds like someone is having a slow year and needs more cash. Why did he wait so long?


Deutsch

Obvious just figured out he could make some money off it and didn’t think about it before. Agree he must need the cash now. He’s too late. Desmond Howard could have taken it a few years later and got it copyrighted himself.


Scorehound

If he was aware of it for years yet did nothing about it, then that is too bad for him. If it was as iconic a photo as is claimed, then he should have protected it a lot sooner than 2011.


SirSeth

I would like to make an appeal to everyone reading. Please don’t try and match wits with the level of intelligence displayed in Youtube comments. Learn something about copyright law before snorting or blowing smoke. So may misguided notions about copyright in general seem to cloud why this case in an interesting one.


micahmedia

I agree with the sentiment, but comments like this are generally just “feeding the trolls”.


Richard Murdey

Statute of limitations?


philchan

Wonder if the doctrine of ‘re publication’ or reuse apply in this case. Those unauthorized usage or continuing usage falling within the ambit of the limitation statute would thus be liable…


Devendra

too bad about the photographer.. but maybe there is a reason why some artists become popular after they die? :)


Steve Balcombe

‘There is a defense to lawsuits called “laches”, meaning that the owner of rights has slept on his/her rights too long and therefore lost them’.

Sounds similar in spirit to a property law here in the UK, which says that if an owner has knowingly allowed someone to occupy land for more than (I think) 15 years without a tenancy, the occupier owns the land. I fell foul of that when I tried to remove someone from a property I owned and received legal advice that I would never succeed because the previous owner had done nothing about it over a period of 20 or 30 years.


Mescalamba

While I understand photographers that they dont want photos stolen and used or misused (not hard to understand when you take photos yourself..). I think waiting 22 years is tiny bit too much..


snegron2

Sorry, I disagree with this photographer. He would not have had this image to begin with had it not been for the “model”. Is this photographer so desperately in need of money that he has to sue a former college athlete for a snapshot he took 20 years ago?

Photographers like this are what give the rest of us a bad name.


Steve D Yue

copyright amendment:

revised so main subject(s) captured in image share full copyrights too

[where release not necessary by the subject if the subject didn’t know who the photographers were when taking her/him (e.g. sports/performance arts, etc, tv broadcast, motion pictures, or stills)]

simple
if it didn’t have this before, it is long overdue

no photographer should/could be allowed to sue the main subject(s) of an image captured by any shooter.

if not, then some idiot photographer can shoot me without permission, whether to gain moneys or to defame me, and STILL sue me, if i use the photo as evidence or acquire usage an ‘image of me’ for my own use.

sdyue


cleew

All photographs have a copyright owned by the creator the moment the shutter is pressed. It is not necessary to register a copyright in order to possess one. The process of registering a copyright, however, does aid in legal situations.

The following article is written in more accessable language than that found on the US copryright web site.
http://www.brighthub.com/multimedia/photography/articles/57981.aspx


John Driggers

The issue of registration goes to damages you can claim. With a registered copyright you get statutory (lots of money) damages for each infringement. An unregistered copyright (the one you get when you create the picture) only gets “provable” loss (which could be little or nothing). Lawyers generally don’t take unregistered copyright cases because the recovery may not even cover their fees.


Cane

The photographer sounds like he needs to take another good photo, it’s been 20 years!


plevyadophy

too funny!!! I love that! :o)


AZBlue

It sounds to me like the photographer needs to pay some bills and thought this was a good way to do so. If the copyright violations go back to the 1990s, I would ask two questions: 1) why did you wait so long; and 2) did you obtain a model release?


Timmbits

when you’re playing at the pro level, it is understood that you can take photos… the sponsorship money wants that.


AlanG

A lot of these posts serve to show how little some photographers know about copyright, model releases, usage licenses, and their rights.

I hope those who don’t bother to learn this or to protect their rights also don’t consider themselves to be professional photographers.


snegron2

I’m a photographer and I think this is a frivolous lawsuit. Does this mean that anyone shooting from the stands that day can sue as well? This was a snapshot taken in a public place. The photographer incurred no expense. Had he been a real photographer he would have placed a copyright stamp on the image immediately, not wait 20 years. Also, I shot professionally back in the 1980’s, and yes, I had a copyright stamp for my prints.


onlooker

> Had he been a real photographer he would have placed a copyright stamp on the image immediately

You do not understand how copyright works. Also, your argument that somehow the photograph has no value because it was taken from the stands and not from where paid photographers stand is beyond ridiculous.


snegron2

By all means, please prove me wrong. How does the monetary value of a snapshot (and a mediocre one at that) compare to a studio-planned photo or a wedding photo? Please enlighten me. Sounds to me like you are defending an opportunistic, money hungry snap-shooter who claims to be a photographer.


aidan obsidian

Well, it’s the decisive moment. Even though studio shots require more planning and equipment, it doesnt make them any more valuable IMHO. The nice thing about shooting in a studio is you can easily replicate any lighting condition you have used previously, and can take nearly identical shots if you choose, over and over…

In this instance you aren’t grasping the significance of the image, it’s all about timing.

You could show me some studio planned shots, and if I have the same model I can guarantee I could make a nearly identical shot. The moment captured in the image in question only happened once.


micahmedia

Media/press photography is a whole different world from private photography for hire. I could say a lot more, but my advice to anyone who doesn’t get why the photographer is suing, is to talk to any photographer who shoots news or any photojournalists.

Maybe I can give a better example though: think of the press on the sidelines of a red carpet event. One photographer captures a moment that nobody else does, a paper picks up the image, it’s well published and it’s all over the internet. In this scenario, imagine that the photographer is paid properly for the press using his image (Getty or some such deal).

That’s all fine and dandy, right?

Say the celebrity who’s image the photographer captures then goes on to write a memoir. Can they use the now famous image on the cover for free?

I don’t think so. Not even 20 years later. On a website…that’s a grey area. Is the image being used to sell a product? If money is changing hands as a result of using someone else’s work…see?


LeonXTR

‘There is a defense to lawsuits called “laches”, meaning that the owner of rights has slept on his/her rights too long and therefore lost them’.
I will be so pleased if this is thrown out of the court and even more if he is slammed with another countersuit for legal expenses (don’t know if it is possible wil US’s legislation though……)


photo chris

I’m amazed he didn’t register it the first time he sold it to SI. As soon as he became aware of unauthorized use years ago, he should have registered it and sued the offending parties for illegal use of his property. This is an iconic sports image, he should have made tons of money off of it…


zakk9

As long as the origin of the photo is undisputed, the photographer should be protected by the Berne Convention regardless of the fact that he didn’t register it until 2011, or is USA different from other member states?


tko

Did the photographer have permission from Desmond to take the photo? Or where Desmond’s rights signed away as some type of a blanket college agreement?

Because if Desmond didn’t sign a model release of some type, how can Masck have ownership? You can’t take a photo of just anyone and use it for gain. Or if you can, it seems like a silly law, because the photographer would have nothing w/o the subject and the pose.


SemperAugustus

yes you can take a photo of anybody in a public place. Specially if you are a public figure. Can you imagine asking Obama or Lindsay Logan to sign a model release so that you can take the photo and publish it.


zakk9

For editorial use, no release is needed. Or do you think all those people in news photos signed releases?


jto555

However, for commercial use the subject needs to sign a model release form. I would say Howard (or his agent) has a stronger case here as Howard’s ‘image’ was use commercially to endorse products. He could even end up taking an action against the photographer.


MichaelK81

He didn’t need Desmond’s permission. Model releases deal with privacy laws. Copyright is a different law altogether, and grants the author (photographer) full ownership of the image he took.


DaveMarx

I’m fairly certain that amateur athletes (and most, if not all, pros) sign a blanket model release as part of their agreement to participate/entry form. The sports organizations normally hold all the publicity rights. While pros may get a piece of that action, NCAA athletes do not. For that matter, you’ll also find blanket model releases printed on the back of admission tickets (sporting events, theme parks, etc.).


mpgxsvcd

We have much more important issues in our country than this.


Nerval

You mean in NC or the States in general? Both would be correct answers I take it.
But, anyway, it’s not like not eating your own meals was going to help feed the rest of the world.
It’s not because you do not treat one aspect of the legality in your country that you will end up treating the other aspects in a more efficient way.


JEROME NOLAS

Poor cry baby! Mom, nobody loves me any more!


onlooker

Brian Masck may not have a legal leg to stand on, but ridiculing photographer’s attempt to enforce a copyright, however imperfect it may be, is a strange reaction coming from another photographer.


Nerval

Well, in the US copyright is taken rather seriously, so even if this precise case looks trivial, it might have some consequences in terms of future rights of authors.

On which basis is set the statue of limitation ?
– Is it just an arbitrary time-limit ?
– Is it from the moment you could reasonably be aware that the violation had taken place, to the time it would have taken to file a case… (like three years from the point you discover the violation).
– Can it be limited at all ? After all, one could claim that ownership’s right is pretty much fundamental in a capitalistic society, so it cannot be forfeit unwillingly…

In the mean time, is it really fair to pursue a claim when you just let it happen for so long?


Nerval

The photographer could have taken action after the first violation occurred. If he did maybe the following violations of copyright would not have taken place.

Can it be inferred from his years long silence, while it was reasonable to assume he knew about the non-permitted use of his property, that he actually agreed to it?

But, that he may be looking for cash, or any other reason, I don’t think it is something to laugh at.

Apple can register square and round forms for smart-phones…
This guy’s work should be treated in the same way.

The nature of the person rightfully claiming, or his net worth, should not factor in the application of the law…


billybones1918

He’d better sue DPR (or whoever they really are now) as well then for all the clicks and advertising they get as a result of posting the image without permission


jjnik

I’m amazed he didn’t bother to level the horizon :). Actually, not that great of a shot – other than the pose, the shot is not well framed (imho).


Amadou Diallo

@billybones1918,
Ironically, its the lawsuit that allows us and any other editorial site to run the image under well-established ‘Fair Use’. We’re reporting a news story about the image. What we couldn’t do is use that image in a how-to article about sports photography, for instance.


chj

lol at the comments saying it’s not such a great photo. Every kid that scored a touchdown for years after this photo was taken was imitating it. And not because of the lighting, white balance, etc. It’s the cockiness of a young star knowing that he IS going to win the Heisman. Dreams, sweat, ambition, achievement and celebration are in this photo.


Richard Weisgrau

I just read the plaintiff’s complaint. It’s long and historical. From my read it seems that he is suing only for alleged infringements after he registered the image in 2011. As I recall, the statute of limitations is 3 years after an infringement is discovered. The 2011 date fits within the that. I don’t know if laches applies to the infringements after 2011 or not. It seems to me that it ought not to. If the photographer has decided to enforce his rights well after he failed to assert them in many older instances, why should he not have that right? I think his bigger problem will be in getting damages in any significant amount because his failure to enforce his copyright for so many years in the face of many unauthorized uses would seem to me to indicate he did not value it much. Of course the court would probably evaluate damages based upon the uses and not the photographer’s perceptions. I think.

Source Article from http://www.dpreview.com/news/2013/03/20/photographer-copyright-suit-desmond-howard

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