The funnier part is that, on the basis of right to ownership of his likeness, Desmond might have a legit claim against people using it for commercial purposes, including the person who took the photo, if that person were to use it for commercial purposes. Obviously, the fact that it was taken while he was a student-athlete, and therefore not entitled to any proceeds during his time as such complicates that simplistic explanation, but still, not sure if that carries over to when he is no longer a student (much the same issues might go into the copyrighting of "Johnny Football"). This will be a very interesting case to follow for any interested in copyright law, given the crossing property interests at stake.
Photographer sues football star and ex-Wolverine Desmond Howard over famous Heisman photo
I can understand sueing SI or any other sports magazine/website that uses the picture without getting the rights, but desmond himself? Thats rediculous.
I read elsewhere that it might be thrown out altogether though (hopefully!). Apparently he waited too long and he may not have copyright claims to it anymore.
As I understand it, the defense that you are talking about is "laches." Laches is an ancient common-law defense. It is still recognized but as far as legal strategies go, laches is the legal equivalent of a Hail Mary pass from your own 20 yard line with 0:02 on the clock.
I favor the photographer in this case. It is his image. I am very sensitive to the fact that he waited to trademark it. And that may well be a mistake. I'd certainly be averse to allowing him to sue for royalties during the period in which he failed to obtain a trademark or a copyright. But I think he ought to be able to, now. And if Desmond wants to use the image, Desmond ought to pay for it.
Seems to me that the easy and best solution would have been for Desmond to buy the copyright for $100,000-$200,000 or so. Sounds like they were close to a deal, or at least a reasonable deal was offered, and Desmond backed out.
Now, the lawyers will get paid first.