PetaPixel

Photog Countersued by Football Player in ‘Trophy Pose’ Infringement Case

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In 1991, photographer Brian Masck took one of the most iconic photographs in all of sports. Known forevermore as the “Trophy Pose,” it captured then Michigan Wolverine Desmond Howard striking a Heisman pose IRL. Since it was taken, the photo has been used by everyone from EA to Nissan to Sports Illustrated, and several of them are now being sued by Masck for using the photo without his permission — including Desmond Howard himself.

For those of you who haven’t read our previous coverage of this case, here’s a recap: The lawsuit targets Sports Illustrated, Nissan and Howard among others, claiming that none of the above asked permission or even credited Masck when using the photo. But while this seems to be a pretty clear-cut case of copyright infringement, it’s actually turned into a pretty messy legal battle that’s about to get a bit messier.

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It turns out that Howard doesn’t take kindly to being sued over his own likeness — especially since he claims that he has never sold the photo or made any money off of it. So Howard and his lawyers have decided to file a massive countersuit against Masck, claiming that the photographer unlawfully used his image by selling merchandise featuring it online.

Howard is referring specifically to Masck’s website TheTrophyPose, which sells everything from life-sized cutouts to framed prints of the famed photograph. Howard also cites Masck’s facebook page “Desmond Howard’s ‘Trophy Pose’ 1991 Photo by Brian Masck,” which the lawsuit claims uses Howards name, likeness and photo, all without permission.

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Although the countersuit probably won’t go anywhere, Sports Illustrated and Nissan have both jumped on Howards bandwagon and asked that the initial suit be dismissed. Clearly they are more in the wrong than Howard (since he says he’s never made a profit from the photo) so it makes sense that they would love for the suit to just go away.

For now, no headway has been made in either the original suit or the countersuit, but this legal tussle raises an interesting question. Obviously, Masck owns the rights to his image, and deserves to be compensated and/or credited when it is used. But what claim, if any, does someone have to the massive profits made from their likeness? At what point does a photo get so big that the subject deserves a piece of the profit pie?

(via Fstoppers)


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

    “At what point does a photo get so big that the subject deserves a piece of the profit pie?”

    I think it is just a question of if the subject deserves compensation or not. The amount of money the image makes or how “big” it gets should not be a consideration.

  • http://www.facebook.com/xsportseeker Renato Murakami

    Aren’t there proper laws and rules in place to settle this?
    For instance, doesn’t photographers automatically gets rights to the images they take on sports events, regardless of who is in frame, to exploit commercially?
    While I do kinda understand Howard for not liking the whole thing that has been created by a photo of him, if there is a previous contract there’s nothing he can do. Yes, it’s an image of him, but you see, actors don’t get a share of the profit studios make out of movies… and it’s not like Howard had a part on the creative/publishing process.
    As for the magazines and ad campaigns that used Brian’s image without crediting or consent, well, it’s clear cut copyright infringement – no discussion there.

  • Trent Levitt

    “At what point does a photo get so big that the subject deserves a piece of the profit pie?”
    How many of Cartier-Bresson’s subjects ever got compensation?

  • Yonaphoto.com

    Property law says that the subject should limit the ‘damage’ of missing out on revenue. Since this picture was taken in 1991, Desmond Howard, has 22 years to file a complaint, but didnt… so he will most likely loose this battle…

  • Todd

    This falls under the many different state laws covering “personality rights”. Some states demand a cut of money for merchandise featuring the image of someone (rather than just selling the photo itself). It’s a very complicated field, more so since it varies between states, unlike copyright, which is federal.

  • DafOwen

    Interesting – however they were not likely well-known before the photo – or were not named in sales e.g. “X jumping over a puddle”