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Photographer's copyright suit lists his subject as defendant

Mar 20, 2013 at 19:23 GMT

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.