PetaPixel

Photographer Behind Iconic Football Pic Sues Player for Copyright Infringement

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This famous photograph of legendary football wide receiver Desmond Howard is currently in the midst of a nasty legal battle. The photographer behind the image, Brian Masck, is suing Howard and a host of companies, claiming that his photo has been used without his permission for years for all kinds of commercial products and purposes.

The image was shot 22 years ago in 1991 after Howard caught a touchdown against Ohio State and struck the famous Heisman Trophy pose. He would go on to win the trophy later that season.

Masck’s photo was published in Sports Illustrated in December 1991, which landed him $500 and a credit line. The photograph quickly went “viral” around the country, appearing in various places in ways he never consented to.

The lawsuit alleges that Getty uploaded the photo to its digital asset management system without permission

The lawsuit alleges that Getty uploaded the photo to its digital asset management system in 2005 without permission

A few years ago Masck noticed copies being sold at a Sam’s Club. That same year, Nissan ran an advertisement in Sports Illustrated featuring the photo. Howard used the photo on his personal website in 2011. Amazon and Wal-Mart sold various products featuring the image through their websites.

The photo appeared in a two-page Nissan ad in 2011

The photo appeared in a two-page Nissan ad in 2010

Howard used the photo in the header of his personal website

Howard used the photo in the header of his personal website

In 2011, Masck contacted Howard, who asked to purchase the copyright of the photo. When Masck suggested a price of $200,000 to $300,000, Howard walked away.

Later that year, Masck finally officially got the photo certified by the US Copyright Office. Now, 17 months later, he’s pulling out the legal guns in an attempt to collect some of the money that he claims he’s due.

Here’s a copy of the lawsuit, in case you’d like to read it yourself:

According to the Detroit Free Press, Masck may be a little too late in filing the lawsuit. The paper quotes IP law expert E. Leonard Rubin as saying,

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. Masck has known of at least some of the various uses about which he now complains for around 20 years and did nothing. He may have lost his rights.

The statute of limitations for copyright infringement is three years, so Masck is only suing for the various unauthorized uses that have occurred over the past three years.

(via Detroit Free Press via DPReview)


 
 
  • http://www.facebook.com/leoabreuphoto Leonardo Abreu

    What’s wrong with people… Stealing photos like that. I hope Brian kicks they butts.

  • KLC

    Maybe the sculptor of the Heisman trophy should sue Masck for appropriating his intellectual property.

  • http://www.purseblog.com/ Vlad Dusil

    Go Bucks. Muck Fichigan.

    (felt like that was appropriate here)

  • Sergei Zhukov

    The photographer will win big. Unless he screwed up somewhere on the way and granted the right to use his photos, which I doubt!

  • G

    Well, as the text says, it does seem like he might already have screwed up.

  • http://www.facebook.com/aydensgrace Ayden Gotzmer

    It only states that he may be too late to file for some of the older infringement, not any of the recent thefts. I have to agree, with the way the courts have been going lately, I highly suspect he will ‘win big’,

  • G

    I see, think I confused it with trademark laws were the consequence of not defending your trademark can cause you to lose the unique ownership to it.

  • Jim

    The photographer isnt gonna get squat. Most SOL is only 3 or so years and may vary from state to state. Curious if SI actually has any say in the image usage. Also like how it took the clown 20 years to lay some sort infringement claim to the image.

  • http://twitter.com/geeves geeves

    The photographer’s real issue is WHO authorized its use in advertisements. It could have very well been Howard (in ignorance) if Howard is lending his image to advertising campaign. If it was 3rd parties on their own, the photographer’s case is with the offending companies, not Howard. In the end of this scenario, it’s still the offending advertiser / publisher.

    As for Howard’s website, most people if they see an image of themselves, they will use it. This happens all the time on FB – hell, FB would collapse under the weight of DMCA lawsuits if photographers really wanted to enforce this.

    Howard should simply agree to remove the offending photo from his site or agree to license it. If Howard’s sole indiscretion was the photo on his website and was dealing with that high price, then I agree that he should have walked away from the price tag.

    I guess this is a lesson for us photographers. If we get iconic shots, bite the bullet, and pay for the copyright registration (especially if published in SI….) and be aware of the consequences of not doing so. Maybe this is more prevalent now than it was 10, 20+ years ago. You hear it all the time, ignorance of the law does not make you immune to it. It’s the same principals on the other side of it. Your ignorance of copyright laws does not make it possible to suddenly enforce it 20+ years after you decided not to – So, photographers, build it into your fees and be proactive.

  • John Kantor

    What kind of scumbag thinks a picture on a website header is worth $200,000? When the subject is actually offering to pay a reasonable amount? Photography is overrun by people feeding their egos.

  • http://www.facebook.com/burnin.biomass Burnin Biomass

    From what I’m assuming from the article, 200,000 was for the copyright in total, not just its use in a header.

  • DafOwen

    Strange one. Getty are known to be very heavy with legal issues and have a team of lawyers.
    Find it hard to imagine they’d just upload a photo without having some kind of permission (e.g. from sports illustrated)

  • JoanieGranola

    That’s why it’s advisable by experts to file your images with the copyright office right away (or at least within a reasonable timeframe). This guy waited far too long, and by the time he did file the images with the copyright office, it was too late for him to do anything about it. I have a book by Rubin, and — while I’m certainly no expert on copyright law — it states in the book that if someone violates your copyright, you’d better have already filed the image with the copyright office. If you find out that your image was used BEFORE you copyrighted your image, you can only file copyright infringement from the date of your filing with the copyright office. It’s a little surprising that Masck didn’t file the image earlier.

  • JoanieGranola

    Sports Illustrated had a limited license on its use of the photograph. That’s what they paid the $500 for. However, since Masck didn’t actually copyright his image until recently, Getty probably won’t be punished — most likely, Getty will have to remove his image from its website unless it wants to pay for the copyright.

  • JoanieGranola

    It’s not a bad idea to copyright your work. If you’re a professional (or even if you’re not) and you have a photo that one person/company wants to use for publicity — copyright it. The fee is only $35 for online and (I think) $65 if you mail it in. And that money isn’t just for one image — you can file as many images under one copyright as you want. Then you’re protected against stuff like this.

  • Bill

    I thought that adding an official copyright, only offers an extra layer of protection in cases like this, but doesn’t “need” to be done. The actual cost to copyright is cheap, I think it is $35 for as many as you want up until that time, so lat’s say 1 or 100 photos per copyright.

    By no means am I a legal expert, but I also thought it was the case that unless the photographer was working under contract or had signed previous rights granting “defined” use(s) of the image(s) for specified terms, a “sudo” copyright was in place.
    Basically saying that if he was there shooting for a local paper, then the paper would retain the rights of the image, not him.

    If I shoot photos of a person let’s say Trade-for-print, which happens all the time, and they go ahead and give that image away for use in ad campaign without my knowledge, unless it is agreed upon for that type of usage, I would have a legal recourse for that usage with or without a official copyright. The only limiting factor would be any statute of limitations for damages if there were any.

    Please enlighten if this sounds wrong, like I said, I am not a legal expert.

  • http://twitter.com/usagizero Andrew Iverson

    I’m curious why he went right to copyright. Did the user just assume that is what he should ask for? Did the photographer not suggest usage rights instead? The cost for a small website header should be far more reasonable, and he probably would have paid that. Quoting copyright price kind of odd for a header image.

  • Adam

    This photographer is nothing but a greedy scumbag. I have a lot of sympathy for people who get their work stolen, but charging the guy IN the picture that much just for having it on his website? I hope this bottomfeeder gets big fat nada.

  • http://www.facebook.com/burnin.biomass Burnin Biomass

    LOL… this is getting Abbot and Costello ish. The offer to buy the copyright had NOTHING to do with the header. This is from USA Today…

    “Howard said that in recent years, he and Masck have discussed the photo,
    and even considered going into business together, though it never
    happened. He also said he once offered to buy the copyright of the photo
    from him, but the price was too high: $200,000 to $300,000.”

  • Ingemar Smith

    That ISN’T what happened. The Petapixel article is poorly written and unclear. The issue here isn’t about Desmond Howard’s website but about the multibillion dollar corporations who illegally monetized the image to promote their brands.

    The focus on Howard seems designed to deflect attention AWAY from the togs rights and to cast him in a negative light.

  • Ingemar Smith

    What about the billion dollar companies? What should he do to them?

  • http://twitter.com/usagizero Andrew Iverson

    Hm, odd phrasing in the article above then, which says “In 2011, Masck contacted Howard, who asked to purchase the copyright of the photo. When Masck suggested a price of $200,000 to $300,000, Howard walked away.” Nothing more, so it makes it sound different.

  • http://www.facebook.com/burnin.biomass Burnin Biomass

    That sounds right to me, but I’m no legal expert either.

  • Jon

    You’re always protected regardless of registration. Registration just adds benefits like punitive damages and recovery of legal fees.

  • Jon

    Copyright is a federal law, not state and therefore not subject to state laws on limitations.

  • Jim

    Pretty much what could be expected from anyone who roots for a football team whose mascot is a nucking fut.

  • Jim

    As Edward C. Greenberg, J.D. and Jack Reznicki point out in their book on Copyright; Copyright without registration is like a gun with no bullets.

  • John

    Had you read the article carefully, you’d know that the amount quoted wasn’t solely for usage on the website, but for the COPYRIGHT ownership of the image. Howard probably wanted it knowing that he could in turn license the image for products and make money on it, but apparently balked at the cost of buying all the rights outright. Don’t call someone a greedy scumbag based on your poor comprehension.

  • Moondoggie

    First, what does “caught a touchdown” mean? This iconic photograph is of Desmond’s punt return against Ohio State in “The Game”, the fiercest rivalry in sports. The Wolverines won 31-3. It was broadcast nationally on ABC. It was seen my millions of people as it happened live. Searching desmond howard heisman pose yields 1,300 images (most of which are Masck’s or derivatives of Masck’s) and many video posts of ABC’s footage on where else but Youtube. There’s even an animation based on video shot at field level from the back corner of the end zone ver, very close to Masck’s position at the time of the shot. A photographer named Chris Covatta has the same instant from a slightly different angle on Getty Images, more “up field” or to Howard’s right as he strikes his pose. While Masck’s still is the iconic image his is not the only capture of the moment.
    If Masck had protected his copyright from the beginning he would have realized substantially more than the initial $500 licensing fee from Sport Illustrated Magazine. It appears that Masck’s calculation is $200,000.00 which this article says is the price he quoted Desmond Howard for selling copyright ownership. I would have suggested that Masck accept a lesser amount of money from Howard instead of assuming the expense and aggravation of multiple for copyright infringement actions.