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Photographer's copyright suit lists his subject as defendant

By dpreview staff on 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.

Comments

Total comments: 101
mikesmtns
By mikesmtns (Mar 22, 2013)

Boy there sure is a lot of misunderstanding amongst photographers about this. And it just gets worse when we're talking different countries. Though common sense says he should have done this a long time ago if he had a problem with it, I"m not sure that has any real relevance according to the law (which favors the photographer, obviously).
Many have questioned why it isn't the property of the newspaper. That very much depends on the contract, and we must assume he retained copyright. Many also wonder about model release. Huh? This is news, the player is making news, so end of discussion.
By the way, the photo IS iconic in the U.S. sports world. The photo IS a winner because of the player's pose, smile, etc. Who cares about the composition and framing, the subject can be placed anywhere and help sell or promote all sorts of things.
And using this topic to display your ignorance of American football and belief that American sports are stupid is just plain childish.

2 upvotes
Casimiro Mondino
By Casimiro Mondino (Mar 22, 2013)

My choice is simple, I have stopped to publish on-line and sell images to news paper. If some body is interested to my images could by a print and it's enough.
I think that the problems that grow up around copyright start in a low consciousness about business that photographers and artist usually have.
If all artist build a international syndicate with the capability to defend artist copyrights many thinks could change in a very short time. Counterwise it's better to take off from accessibility all images. Yes iit's a money damage but nobody become reach for free with results from an hard work of somebody.

0 upvotes
Rdefen
By Rdefen (Mar 21, 2013)

For my own interest I took a brief googly into the "you sat on your ass" defense -- aka laches defense -- in the Copyright infringement context. Keep in mind Copyright infringement has a statute of limitations.

What I find is, we don't need no stinkin' Laches when there's a statute of limitations.

At least in some Circuits.

The Circuits split on whether they allow it as a defense to infringement. Some don't (4th Circuit) . Some do (9th Circuit).

This photographer sued in the 6th and the 6th appears to split the baby, they will in (very) rare cases allow the defense but only so far as to preclude an injunction, you still can get money damages.

This guys bigger problem is apparently not registering before infringement occurred.

Also, this isn't exactly new news : http://forums.dpreview.com/forums/post/50890656

1 upvote
Aeros
By Aeros (Mar 21, 2013)

Canadian Copyright Law
Canada in the past few months revised its copyright laws giving photographers more protection and rights under the revised act. The revision has basically caught up with the rest of the world and in particular the US.

Prior to the lobbying of a photography organization named CAPIC “Canadian Association of Photographers in Communications” there was no copyright protection for photographers, as there is for other authors of “Intellectual Works” like painters, writers, song writes et al. The Act now provides the same rights as was draughted at the Bearn Treaty. My case was about 12 years old, but I still won it.

for the rest of this post contact me at aeros@aeros.bz

Comment edited 2 minutes after posting
0 upvotes
jm67
By jm67 (Mar 21, 2013)

All I can say is "good luck with that". Where have you been for over 20 years?

3 upvotes
John P.
By John P. (Mar 21, 2013)

I would call this image anything but iconic.

2 upvotes
Dale Hylton
By Dale Hylton (Mar 21, 2013)

As long as the photographer was accredited to shoot the event, he doesnt need permission from the subject, stadium owners, etc ... especially when this was shot. New accreditation small print gives the promoter just about all the rights.

1 upvote
Michael J Davis
By Michael J Davis (Mar 21, 2013)

Reading this, and some of the comments below, makes me also wonder if the stadium owner doesn't come into this.
In the UK the law permits one to take photos of people 'in public' without their consent. Once we are on private property, then there are conditions that (may) apply - for instance you cannot just turn up at a theatre and take photos of the performance; nowadays we are finding that (under the guise of 'protecting children') public parks are no longer 'public spaces' but come under the control of the municipal authority, with bye-laws restricting photography without express permission of the subject (i.e. anyone appearing in the photograph) and/or their guardian. Landscape photographers beware!! ;-)
So do stadiums now own the rights to photography on site?
Just a further complication I fear!
M.

0 upvotes
Photocrawf
By Photocrawf (Mar 21, 2013)

And where does the Detroit Free Press stand in all this? If Brian was working for the paper, is his picture not a work for hire and therefore the property of the newspaper?
For pics taken after 1978 law, Copyright is born when the image is taken and lasts the lifetime of the maker plus 70 years, I believe. The copyright does not need to be registered to be valid, and in fact does not even have to have a copyright mark. Of course one might have a much more difficult time in court without those precautionary steps.
Unless the image is in the public domain, it legally doesn't matter the time frame (as I read the copyright law).

0 upvotes
En Trance
By En Trance (Apr 2, 2013)

Thought this was the case also. Considering the 10s of thousands of photos that we take, it would not seem practical to require registration. It would need to be similar to patent law which only requires proof of utility and no prior art.

0 upvotes
John Crawley
By John Crawley (Mar 21, 2013)

I wonder if Desmond gave him the rights to photograph his"move"? Too many lawyers in this world...way too many. Most need to be share cropping in Alabama.

1 upvote
En Trance
By En Trance (Apr 2, 2013)

You made me think that The Downtown Athletic Club may be the ultimate owner of the pose, since Desmond was clearly copying. So maybe the photographer can't claim this one? Complicated...

0 upvotes
jtan163
By jtan163 (Mar 21, 2013)

I wonder if the shooter had the subject's release?
And if not I wonder if the photographer has ever used the shot for non editorial purposes?

And if the shooter does win, and say gets damages from Amazon and WalMart, does he then have to split them with Howard if he did not have a release?
(Assuming that Amazon/Walmart or the manufacturers of the products they sold didn't pay Howard direct).

And what is your liability if you hold copyright on an image, that has no release and it get's exploited commercially, but you don't have the subject's release?
Can the subject hold the copyright owner liable, since the copyright holder took the image but did not defend the image which caused the subject image to be exploited commercially without the subject's permission?

Really nice can of worms.

0 upvotes
Kodachrome200
By Kodachrome200 (Mar 21, 2013)

being in a photograph does not entitle you to anypart of the photographs copyright. using a subjects like ness without there permission is a completel diffrent lawsuit the subject would have ton engage in. they dont get a piece of the infringement

1 upvote
En Trance
By En Trance (Apr 2, 2013)

I am thinking that the Downtown Athletic Club, the Heisman Sculptor, or the original Model for the Sculptor should be considered to be the originators. Can of worms indeed.

0 upvotes
Paul Guba
By Paul Guba (Mar 21, 2013)

Another reason not to like Michigan fans.

0 upvotes
TomasJacko
By TomasJacko (Mar 21, 2013)

the most interesting thing about this story is the sheer mediocricity of the photo.

15 upvotes
88SAL
By 88SAL (Mar 22, 2013)

Yeah. And for the majority of people in the world, ie. not Americans, it means nothing to us. I dont think American football really has much impact overseas. Europe has the real football (soccer in AUS), and where i'm from, Australia, what we call football is Rugby, which is in the same boat as superbowl. Personally I think all American football is goofy lookin, and all Rugby/Football style sports are pretty homo-erotic anyway what with the way they all jump ontop of each other and wiggle their bums up and down. Good luck to him, but it seems its a little late to start sucking on sour grapes

1 upvote
Ionian
By Ionian (Mar 23, 2013)

Lol...You know you're supposed to be seeing your therapist for those issues you're suffering from. Stop skipping those appointments! They're just trying to help you deal with your issues!

0 upvotes
tmurph
By tmurph (Mar 21, 2013)

Murray Rothbard, so what you're stating is that when someone or some organisation sees an image taken by someone else they have the right just to take/use it for their own needs. They never bothered to get the equipment together, use their own transport or payed for the travel to get there. Didn't do all the hard work but think they have the right just take someone else's work and more than likely made money out of it.
Yes he does own the image, he bothered to do all the hard work to
get it.He stopped a moment in time, its part of history now and it most probably brought a lot of enjoyment to people who have looked at it.
To your way of thinking Ansel Adams is just an insignificant little person who took some of the most iconic photographs ever seen but, realy shouldnt have bothered if he doesn't want anyone to look at them.

Comment edited 2 minutes after posting
0 upvotes
Murray Rothbard
By Murray Rothbard (Mar 21, 2013)

You can't own an image, an idea, a sound, a flavor, anything that is not tangible and subject to objective, universally agreed-on parameters. You can own a piece of paper on which animage is printed, you can own a digital file containing color data, but you cannot own particles of light. If you don't want anyone to "steal" your image, then keep it to yourself. Otherwise, as the expression goes: What has been seen cannot be unseen."

1 upvote
BHPhotog
By BHPhotog (Mar 21, 2013)

That's nonsense. That's not what copyright law says. If you have a real cite that supports this, post it. Otherwise, withdraw it because it's just flat out wrong. It is true, however, that a suit may become more difficult to win under many different conditions, in different jurisdictions, but winning/losing the suit has nothing to do with the law.

9 upvotes
f8pc
By f8pc (Mar 21, 2013)

You can't own an idea? Are you serious? What do you think a patent is?

5 upvotes
theRBK
By theRBK (Mar 21, 2013)

actually, a patent cannot be an idea, it has to be an implementation of an idea... like, say, a person cannot patent the idea of time travel, only a way to achieve time travel...

but in this case, the photographer can own the rights to the image that he captured, which is not an idea or an image in its abstraction but an actual piece of work he carried out... the main problem with the case is the time lapse...

4 upvotes
Deleted pending purge
By Deleted pending purge (Mar 21, 2013)

The photographer who shot an image has all the authoring rights to it, and these rights will be the same a million years from now. The problem with a time lapse is just a lawyerese, an attempt to legitimize illegal use. To my sorrow, the wordplay used so as to find a way to deny such rights to any author is all too often, and perhaps may describe the distinction between legal and illegal, by intentionally forgetting the basics of right and wrong. Which should be criminalized as such.
To illustrate, there is this PCPOP and BUBBLE websites which help themselves to the whole contents (!) of DPR Challenges right now (stealing the batches of images from right here).
Perhaps this could help form an opinion about Authors' Rights vs. Reality...
http://forums.dpreview.com/forums/thread/3446987

Comment edited 6 minutes after posting
2 upvotes
micahmedia
By micahmedia (Mar 21, 2013)

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.

Comment edited 3 times, last edit 10 minutes after posting
12 upvotes
NiallM
By NiallM (Mar 21, 2013)

There's a specific time lapse in your US law regarding keeping copyright 'active'; he's no case if he's let it slip unfortunately..what's written in law stands.

0 upvotes
JadedGamer
By JadedGamer (Mar 21, 2013)

Um, NiallM, the picture is from 1991 long after the U.S. signed the Berne copyright convention which grants automatic copyright. Now, unless he registers it he cannot claim statutory damages (as I understand what I heard on TWiP), just direct damages (which are smaller), but there is no "lapse" beyond the time limit - which these days extends beyond death...

Trademarks, now those you need to defend.

Comment edited 12 seconds after posting
0 upvotes
En Trance
By En Trance (Apr 2, 2013)

How does the photographer own the copyright, since he has photographed a Model, "copying" a pose? Shouldn't the Heisman people/sculptor/model be considered the originators? It is like taking a picture of the Mona Lisa

0 upvotes
wkay
By wkay (Mar 21, 2013)

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.

Comment edited 52 seconds after posting
0 upvotes
BHPhotog
By BHPhotog (Mar 21, 2013)

Not correct. Formal filing has nothing to do with copyright; it might effect your ability to collect damages for violating the copyright, but it has no substantive effect on your copy-rights.

1 upvote
DStudio
By DStudio (Mar 21, 2013)

The rules are completely different when the photo is used in a news story, as DPR has here. They have nothing to worry about.

1 upvote
Kodachrome200
By Kodachrome200 (Mar 21, 2013)

bhphotog you cannot sue for certain types of damages (theones that pay the most) without a registration

0 upvotes
BHPhotog
By BHPhotog (Mar 22, 2013)

kodachrome200, sorry, but that's incorrect.

Any, and all, copyright infringement actions are open to anyone who holds the right(s). The more rigorous the test, the more difficult to win, but you aren't barred from trying.

0 upvotes
Kodachrome200
By Kodachrome200 (Mar 22, 2013)

sorry you are wrong. you need a registration to be eligible for the most lucrative damages

0 upvotes
JavierDiaz
By JavierDiaz (Mar 21, 2013)

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

1 upvote
micahmedia
By micahmedia (Mar 21, 2013)

...how's that relevant here?

1 upvote
Deutsch
By Deutsch (Mar 21, 2013)

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

4 upvotes
micahmedia
By micahmedia (Mar 21, 2013)

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

1 upvote
Deleted pending purge
By Deleted pending purge (Mar 21, 2013)

This is the most ridiculous (criminally so, even) decision I've ever heard about. The judge concocting this stupidity should be fined for the lack of architectural estethics of the house he lives in... see how he'd like that. :(

0 upvotes
Goodmeme
By Goodmeme (Mar 21, 2013)

Actually this sounds sensible to me. The photog took a boring shot at the right time. He was compensated for being there already. Now, years after the event, he wants more money for a snapshot where lets face it all the star quality comes from the star in the shot, not the photog behind the lens. The law needs to catch up like it seems to have done in France. Most (not all) photojournalism is not artwork. A machine could do it, and it seems more and more sports photogs use clever devices to machine gun the photos from a distance.

Note I think they should get paid for doing this arguably skilled job, but I don't think they should have a right not to sell at a fair, pre-set price and image of a celebrity which many stakeholders - the players, the teams, the newspapers, the fans - arranged /willed to be taken.

Comment edited 1 minute after posting
0 upvotes
JavierDiaz
By JavierDiaz (Mar 21, 2013)

@ micahmedia: The word "Similar" as in "Similar situations" says nothing to you? Cheers.

0 upvotes
Deleted pending purge
By Deleted pending purge (Mar 22, 2013)

@Goodmeme... Suppose you shot a snap of an UFO landing. Suppose the situation was so unnerving that the quality of your shot was nil, but the theme alone was unique. Suppose all the other people's pictures possibly taken there were even worse or unusable.
What you have in such an imaginary situation, is the best available, and you sell it to some news agency...
Now apply the rest of this story here to this photo of yours.
I'm sure you'd be rightfully enraged with some uppity court decision based upon the questionable quality of the photo.

0 upvotes
En Trance
By En Trance (Apr 2, 2013)

I agree with you Javier. The photo lacks "artistic creativity" because it is a mimic of the Heisman Trophy.

0 upvotes
Timmbits
By Timmbits (Mar 21, 2013)

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)

Comment edited 32 seconds after posting
0 upvotes
nihon94
By nihon94 (Mar 21, 2013)

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)

1 upvote
dmurphey
By dmurphey (Mar 21, 2013)

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

2 upvotes
Deutsch
By Deutsch (Mar 21, 2013)

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.

0 upvotes
Scorehound
By Scorehound (Mar 20, 2013)

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.

0 upvotes
SirSeth
By SirSeth (Mar 20, 2013)

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.

3 upvotes
micahmedia
By micahmedia (Mar 21, 2013)

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

1 upvote
Richard Murdey
By Richard Murdey (Mar 20, 2013)

Statute of limitations?

0 upvotes
philchan
By philchan (Mar 20, 2013)

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...

0 upvotes
Devendra
By Devendra (Mar 20, 2013)

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

1 upvote
anthony mazzeri
By anthony mazzeri (Mar 21, 2013)

Good point. Hollywood and Warner Bros cartoons not having to pay for old classical music or stories from dead authors - The Lone Ranger (or Bugs Bunny) riding along to Rossini's William Tell Overture for example, or Walt Disney making a movie of Collodi's children's story about Pinocchio.

Interesting point, if the recently introduced extension to the US copyright period limit was retro-active, Disney would owe Collodi's estate billions because the new current time limit would actually now cover the timespan between Collodi's book and Walt's movie.

1 upvote
Steve Balcombe
By Steve Balcombe (Mar 20, 2013)

'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.

1 upvote
CyberAngel
By CyberAngel (Mar 21, 2013)

another legal advise?

Comment edited 14 minutes after posting
0 upvotes
Mescalamba
By Mescalamba (Mar 20, 2013)

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..

2 upvotes
snegron2
By snegron2 (Mar 20, 2013)

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.

0 upvotes
Sdaniella
By Sdaniella (Mar 20, 2013)

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

Comment edited 22 seconds after posting
4 upvotes
anthony mazzeri
By anthony mazzeri (Mar 21, 2013)

I would have assumed generally speaking the organization or team which the player is contracted to would hold the copyright release to any image taken of them during an official event, not the individual players themselves.

0 upvotes
Kodachrome200
By Kodachrome200 (Mar 22, 2013)

absolutely ridiculous being in a photo entitles you to nothing. the law protects your likeness from being publicly distrubted in a non editorial way. The image belongs to the person that made it

1 upvote
cleew
By cleew (Mar 20, 2013)

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

0 upvotes
John Driggers
By John Driggers (Mar 20, 2013)

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.

4 upvotes
Cane
By Cane (Mar 20, 2013)

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

10 upvotes
plevyadophy
By plevyadophy (Mar 21, 2013)

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

0 upvotes
AZBlue
By AZBlue (Mar 20, 2013)

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?

3 upvotes
Timmbits
By Timmbits (Mar 21, 2013)

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

0 upvotes
Kodachrome200
By Kodachrome200 (Mar 22, 2013)

you dont need a model release to own a copy right it has nothing to do witht the photographers infringement claim. the model release would come into play if the subject was sueing someone for printing his likeness in a non editorial way without his permisssion this is a wholly seperate lawsuit

0 upvotes
AlanG
By AlanG (Mar 20, 2013)

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.

2 upvotes
snegron2
By snegron2 (Mar 20, 2013)

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.

1 upvote
onlooker
By onlooker (Mar 20, 2013)

> 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.

5 upvotes
snegron2
By snegron2 (Mar 21, 2013)

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.

0 upvotes
aidan obsidian
By aidan obsidian (Mar 21, 2013)

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.

Comment edited 40 seconds after posting
4 upvotes
micahmedia
By micahmedia (Mar 21, 2013)

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?

Comment edited 2 minutes after posting
3 upvotes
Jonathan F/2
By Jonathan F/2 (Mar 21, 2013)

The best response here. The rest are just amateur schmucks spewing nonsense.

1 upvote
LeonXTR
By LeonXTR (Mar 20, 2013)

'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......)

1 upvote
Wildbegonia
By Wildbegonia (Mar 21, 2013)

Or countersuit for incompetence and plain dumbness.

0 upvotes
photo chris
By photo chris (Mar 20, 2013)

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...

2 upvotes
zakk9
By zakk9 (Mar 20, 2013)

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?

3 upvotes
Wildbegonia
By Wildbegonia (Mar 21, 2013)

Agree, so far the most fair and intelligent comment I read here.

1 upvote
tko
By tko (Mar 20, 2013)

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.

1 upvote
SemperAugustus
By SemperAugustus (Mar 20, 2013)

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.

Comment edited 2 times, last edit 10 minutes after posting
11 upvotes
zakk9
By zakk9 (Mar 20, 2013)

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

5 upvotes
jto555
By jto555 (Mar 20, 2013)

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.

3 upvotes
MichaelK81
By MichaelK81 (Mar 20, 2013)

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.

5 upvotes
DaveMarx
By DaveMarx (Mar 20, 2013)

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.).

3 upvotes
Photo-Wiz
By Photo-Wiz (Mar 21, 2013)

He may not need a model release to take the picture, or even to publish it. But if the photographer is going to use it for commercial purposes, he needs to purchase the rights from the model depicted in the picture. Think about it....you can take a picture of Marilyn Monroe smoking a cigarette in a public place and publish it in Life magazine. But if you put it in a cigarette commercial you have to pay Marilyn.

1 upvote
mpgxsvcd
By mpgxsvcd (Mar 20, 2013)

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

6 upvotes
Nerval
By Nerval (Mar 20, 2013)

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.

2 upvotes
Wildbegonia
By Wildbegonia (Mar 21, 2013)

Not an important issue? Let it be and soon you will have China, India taking over for profit.

0 upvotes
JEROME NOLAS
By JEROME NOLAS (Mar 20, 2013)

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

2 upvotes
onlooker
By onlooker (Mar 20, 2013)

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.

18 upvotes
Nerval
By Nerval (Mar 20, 2013)

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?

2 upvotes
Nerval
By Nerval (Mar 20, 2013)

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...

Comment edited 5 minutes after posting
2 upvotes
billybones1918
By billybones1918 (Mar 20, 2013)

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

2 upvotes
jjnik
By jjnik (Mar 20, 2013)

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).

Comment edited 2 minutes after posting
2 upvotes
Amadou Diallo
By Amadou Diallo (Mar 20, 2013)

@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.

4 upvotes
chj
By chj (Mar 21, 2013)

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.

Comment edited 3 times, last edit 6 minutes after posting
1 upvote
Richard Weisgrau
By Richard Weisgrau (Mar 21, 2013)

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.

0 upvotes
CyberAngel
By CyberAngel (Mar 21, 2013)

let's follow the case.
My opinion: copyright can not be infringed in ANY case
Damage suit starts from 2011 in this particular case
Let the judges decide...

0 upvotes
Total comments: 101