Photographer of iconic Desmond Howard photo sues for infringement

38 posts / 0 new
Login or register to post comments
Last post
January 20th, 2013 at 8:27 AM
#1
m1817
m1817's picture
Joined: 01/15/2011
MGoPoints: 573
Photographer of iconic Desmond Howard photo sues for infringement

From The Detroit News:

 

The photographer who snapped Desmond Howard's iconic Heisman Trophy pose has sued the former University of Michigan and National Football League star, along with several other companies, for copyright infringement.

 

Masck says he's been cheated of the notoriety and money from taking the shot. Masck was working on a freelance assignment when he took the photograph.

 

"My client tried for a long time to suppress his disappointment and for not being recognized," said his attorney, Thomas Blaske. "(Masck) wants a permanent injunction against the misuse of his picture and wants their profits. But even of a higher priority to Brian Masck, he wants credit. … It's no different than any artist."

 

http://www.detroitnews.com/article/20130120/METRO/301200306/1131/sports0...

Top
Tags:

Comment viewing options

Select your preferred way to display the comments and click "Save settings" to activate your changes.
January 20th, 2013 at 8:36 AM | Good thing he didn't wait (Score:5 Normal)
cypress
Joined: 11/05/2009
MGoPoints: 966

Good thing he didn't wait very long.

January 20th, 2013 at 8:44 AM | Seriously (Score:2 Normal)
I Like Burgers
I Like Burgers's picture
Joined: 10/06/2012
MGoPoints: 333

Has this guy just been sitting in his basement grumbling for the last 20+ years?

Hot dogs are the devil.

January 20th, 2013 at 10:59 AM | Hmmm... (Score:3 Normal)
clarkiefromcanada
clarkiefromcanada's picture
Joined: 11/21/2008
MGoPoints: 13009

He couldn't find a lawyer willing to take this on until now?

If the haters don't hate you then you're doing something wrong. - David Cone

January 20th, 2013 at 9:00 AM | Come On Man! (Score:2 Normal)
megaswami
Joined: 08/23/2008
MGoPoints: 8

Check this guy's financials! What's next, HS dropouts challenging their grades from 20 years ago?

Megaswami

January 20th, 2013 at 12:31 PM | That (Score:3 Normal)
LSA Aught One
Joined: 08/24/2011
MGoPoints: 856

That grade in typing DID cost me my spot in the top 10 at graduation. If I sue, do you think they will allow us to march again?!

January 20th, 2013 at 9:22 AM | Isn't there a video from the (Score:4 Normal)
FreddieMercuryHayes
Joined: 12/29/2010
MGoPoints: 4901

Isn't there a video from the broadcast as well? Couldn't people just start using a screen cap from that and make this guys point moot?

January 20th, 2013 at 9:40 AM | Resolution would be too low (Score:4 Normal)
Bloodoo
Bloodoo's picture
Joined: 05/05/2012
MGoPoints: 162

Resolution would be too low to print.

January 20th, 2013 at 11:16 AM | If they use the screen cap... (Score:1)
lilpenny1316
lilpenny1316's picture
Joined: 11/19/2009
MGoPoints: 2681

...and don't pay ABC or whomever, then that's illegal.  That's the reason for the disclaimer at the end of the game about "reproducing content with the expressed written consent of ......"  It's bootlegging.  

January 20th, 2013 at 9:25 AM | Someone is currently in need (Score:5 Normal)
Soulfire21
Soulfire21's picture
Joined: 03/18/2010
MGoPoints: 3149

Someone is currently in need of money.

HAIL.

January 20th, 2013 at 9:26 AM | This quote? (Score:4 Normal)
Dutch Ferbert
Dutch Ferbert's picture
Joined: 01/08/2011
MGoPoints: 640

"Howard's pose after a 93-yard punt return for a touchdown has become one of the most famous moments in college football. The lawsuit calls it "synonymous with college football and even has touched off a cultural phenomenon — striking the 'Heisman pose.'"

It's not synonymous with college football because of this photo. It's a cultural phenomenom because Desmond did this pose after a huge play in the most important game of the season. Oh yeah, he went on the win the Heisman by a landslide too.
 
Maybe this guy should stop bitching and thank Desmond for doing the damn pose. I can see him wanting to get paid, but he's a moron to wait until 2011 to get it copyrighted.

"[The University of Michigan] was, in short, the testing ground for all my prejudices, my beliefs and my ignorance, and it helped to lay out the boundaries of my life."--Arthur Miller

January 20th, 2013 at 9:47 AM | It was copyrighted the second (Score:5 Normal)
joeyb
joeyb's picture
Joined: 10/12/2008
MGoPoints: 11303

It was copyrighted the second that he took the photo. You don't have to register it with the copyright office to have it copyrighted.

January 20th, 2013 at 10:33 AM | I'm ignorant regarding copyright law (Score:3 Normal)
Dutch Ferbert
Dutch Ferbert's picture
Joined: 01/08/2011
MGoPoints: 640

The article says, "In 2011, Masck was granted a copyright for the photo."

What does that mean? Is the granting of a copyright just formal recognition of the copyright he's had since day one? Or is the News mistaken?

"[The University of Michigan] was, in short, the testing ground for all my prejudices, my beliefs and my ignorance, and it helped to lay out the boundaries of my life."--Arthur Miller

January 20th, 2013 at 10:53 AM | They probably mean he (Score:5 Informative)
eecslaw0914
Joined: 12/07/2012
MGoPoints: 9

They probably mean he registered it with the copyright office.  Nowadays, the moment you create most anything its copyrighted, but in order to actually sue anyone you need to register it with the office first. 

January 20th, 2013 at 11:18 AM | I could be wrong (Score:1)
lilpenny1316
lilpenny1316's picture
Joined: 11/19/2009
MGoPoints: 2681

but I believe the copyright process does take a while and some money.  If he was awarded the copyright in 2011, the process may have started some years before.

January 20th, 2013 at 2:46 PM | It is actually inexpensive to (Score:1)
NoMoPincherBug
NoMoPincherBug's picture
Joined: 04/08/2011
MGoPoints: 1432

It is actually inexpensive to file for a copyright and you usually get notice within 6 months. 

January 20th, 2013 at 9:34 AM | Maybe Desmond Howard could countersue (Score:5 Normal)
m1817
m1817's picture
Joined: 01/15/2011
MGoPoints: 573

Maybe Desmond Howard could countersue the photographer for profiting from using his image.

January 20th, 2013 at 10:13 AM | No (Score:3 Informative)
superstringer
superstringer's picture
Joined: 02/04/2009
MGoPoints: 975

Public personalities don't have those rights.  Paparazzi make a living off of that -- taking public photos of famous people and selling them.  Now, if the guy was to tell people Demond approves of his work, that's "pawning off" and Desmond would have a civil claim for that -- but merely using the photo of a famous person is totally legitimate and, frankly, encouraged.  That's why they're famous, right.

Besides, if he was invited into the stadium to take pictures for the game (or given permission to do so), then he can say he had an implied license ot use whatever photos he took for any reason he wanted to.

I'd be interested if the University makes photographers sign some kind of contract or agreement, in order to get in to take pictures.  DItto with press in the press box.  But I'd be sure the press and photogs are not limited in making money off of their work -- it's why they're there.

January 20th, 2013 at 10:59 AM | That and Des doesn't have rights to his image (Score:0 Trolling)
January 20th, 2013 at 9:38 AM | Some Brian Masck Stuff... (Score:3 Informative)
LSAClassOf2000
LSAClassOf2000's picture
Joined: 01/07/2011
MGoPoints: 8754

He actually has a site where he is already trying to make money with this photo, it  seems, or at least the registered version of it - http://thetrophypose.com/

There's also some back-and-forth here on MVictors about Masck's days working for the Daily in the early 1980s - http://mvictors.com/?p=9681

Here's something interesting as well - LINK - it seems that when Masck was fired from his job as  photographer for the Flint Journal in 2006, he was not allowed to retrieve items from his office, items which included the negative of the photograph of Desmond Howard. The link is to the official filing of the subsequent lawsuit. 

"Funny isn't it, how naughty dentists always make that one fatal mistake."

Follow the random tweets of a Michigan alum - http://twitter.com/#!/LorneEC3

January 20th, 2013 at 10:39 AM | Good stuff, thanks.  Why in (Score:3 Normal)
SysMark
SysMark's picture
Joined: 11/15/2008
MGoPoints: 5566

Good stuff, thanks.  Why in the world was that negative not in a safe deposit box somewhere?  This guy seems a little slow on the uptake.

January 20th, 2013 at 10:09 AM | moneygrab (Score:5 Informative)
superstringer
superstringer's picture
Joined: 02/04/2009
MGoPoints: 975

This is most but not entirely BS.  Lawyer here who's done a bunch of copyright stuff over the years.

He doesn't have a copyright to Desmond's POSE -- that was Desmond's creative idea.  And the Heisman statute pose itself belongs to the Downtown Athletic Club.  (Desmond, in fact, could be accused of "infringing" that pose, as a derivative performance of the statute - but there would be all sorts of defenses to a suit and the momentary post in the endzone probably wasn't infringement.)

All he has copyright over is, his actual photograph of the moment.  If anyone copied it, indeed, that's a violation.... UNLESS its "fair use."  There is a laundry list of things that make it fair use.  So not every reproduction of the photo is necessarily an infringement.

I'm not sure what the statute of limitations is for a copyright lawsuit.  But it's fair game to think he's too late on most of the infringements, if there are any.

This is what is called a "strike suit" -- you file a lawsuit that's going to be a nuisance to the defendant, and they toss you money to go away.  Lindsay Lohan sued E*TRADE for $100 million (for the priceless "milkoholic boyfriend stealing Lindsay" baby commercial) and settled for, like, an unbelievably tiny percentage of that.  Its also a way the lawyer makes a name for himself, even if the lawsuit amounts to nothing.

But... cmon folks... let's just relive the moment 20 years later.  That was one of the greatest moments of being a MICHIGAN football fan, ever!

January 20th, 2013 at 11:00 AM | The statute of limitations is (Score:2)
eecslaw0914
Joined: 12/07/2012
MGoPoints: 9

The statute of limitations is three year, fyi. Good writeup!  

January 20th, 2013 at 11:42 AM | Correct me if I'm wrong, but (Score:2)
MaizeAndBlueWahoo
MaizeAndBlueWahoo's picture
Joined: 07/02/2008
MGoPoints: 11829

Correct me if I'm wrong, but I believe the answer here is that, having been granted a copyright in 2011, he's going to have a very hard time collecting any money that was made prior to the copyright, or at least the point where he began the process, yes?

"We've beaten Michigan the last four years.  So where's the threat?"

- Mark Dantonio

Blogging the Virginia Cavaliers at http://fromoldvirginia.blogspot.com/<

January 20th, 2013 at 10:22 AM | What a clown to wait this (Score:1)
Danwillhor
Joined: 12/02/2008
MGoPoints: 569

What a clown to wait this long and I'd suspect he is in need of cash FAST. Maybe he used that Indian loan company and can't pay the $800 a week (for 178 weeks) on his $10k loan? Maybe JG Wentworth has sent his hit squad? Either way, as dumb as it is his biggest boom may be that EA used the pic on a videogame cover that sold millions. Doubt he can get much from anyone or any institution but EA as (not a lawyer) I'd assume Desmond has no liability to pay and has ESPN's laywers even if he does through autograph signings, etc. I mean, could be tough to know and assign if and how much he made doing that where EA has an undoubtedly easy to determine number of sales on NCAA 07 (IIRC, could be 05 or 06). Well, unless Desmond was paid for allowance of use. Either way, guy needs to explain why he waited 20+ years to care enough to sue. haha.

January 20th, 2013 at 2:37 PM | My favorite acronym: IANAL (I (Score:1)
kevin holt
kevin holt's picture
Joined: 03/16/2010
MGoPoints: 2820

My favorite acronym: IANAL (I am not a lawyer)

Mike Martin told me he loves me. My life is quite possibly complete.

Join the bone marrow donor registry today: www.dkmsamericas.org (do it.)

January 20th, 2013 at 10:41 AM | Michigan > Photographer (Score:1)
Michigan Mizo
Michigan Mizo's picture
Joined: 12/07/2012
MGoPoints: 26

I don't have any knowlege of copyright law but I am confident Michigan's lawyers > the photographer's lawyers and Micahigan's bank roll >> photographer's bank roll.  This will go away quietly.

January 20th, 2013 at 11:08 AM | I didn't see that they were (Score:1)
bluebyyou
Joined: 09/07/2009
MGoPoints: 2683

I didn't see that they were suing Michigan.  Regardless, unless the case can be quickly disposed of, there will be settlements because litigation costs in most IP matters are always expensive.  Crap, with the number of parties involved, the bills just to get past discovery will be anything but cheap. Sometimes it is just easier (and cheaper) to write a check and move on.

January 20th, 2013 at 11:35 AM | Denard Robinson had a photo (Score:1)
GoBluePhil
Joined: 09/15/2011
MGoPoints: 314

taken that represented the Heisman figure that was much more representative of the trophy pose. I've seen it several times but don't know who took it. Are we saying that every time a photographer takes a picture or video that was taken of a player that the person taking such shot becomes sole owner therefore retains all rights to its use. What about the player. He could say the shot was taken without his permission therefore retaining rights to the photo or video as well. Just thinking out loud.

January 20th, 2013 at 11:50 AM | Are we saying that every time (Score:2)
MaizeAndBlueWahoo
MaizeAndBlueWahoo's picture
Joined: 07/02/2008
MGoPoints: 11829

Are we saying that every time a photographer takes a picture or video that was taken of a player that the person taking such shot becomes sole owner therefore retains all rights to its use.

Pretty much, yes.  No doubt the fine print on Denard's scholarship grants the school the right to his imaging and likeness etc. etc., the player agrees that that belongs to the school which then grants media companies and personnel the right to broadcast and take pictures.

The problem with the guy's lawsuit is that as a freelance photographer, he no doubt sold rights to use his photograph to some of the very media entities he's now suing.  If you sold the rights or gave them to certain people and they use that to get rich and famous, tough cookies for you.

"We've beaten Michigan the last four years.  So where's the threat?"

- Mark Dantonio

Blogging the Virginia Cavaliers at http://fromoldvirginia.blogspot.com/<

January 20th, 2013 at 12:01 PM | I don't believe he sold the photo to Fathead (Score:1)
lilpenny1316
lilpenny1316's picture
Joined: 11/19/2009
MGoPoints: 2681

So I think the agreement between the photographer and the company that sold the image to Fathead comes into question.  Same goes for any other companies that didn't buy rights to the image directly from the photographer, but another company like Getty Images.

January 20th, 2013 at 1:14 PM | True, but two problems arise (Score:3 Normal)
MaizeAndBlueWahoo
MaizeAndBlueWahoo's picture
Joined: 07/02/2008
MGoPoints: 11829

True, but two problems arise for the photographer.  One, I doubt he can collect on any money Fathead (or anyone else) made before he copyrighted it.  If Fathead legitimately bought the rights from someone who legitimately had them, he might not be able to collect on any money afterwards, either.

Two, he's basically suing on Fathead's entire business model, which (presumably) buys pictures from places like Getty Images for use in Fatheads.  I suspect Getty Images has a pretty good case as to why they own rights to that picture, because it's kind of their entire business model too.  (Note the irony that the DetNews article features the picture in question, credited to Getty Images.)  If Getty owns it, they've been selling it for years, which isn't that different from what they do with the millions of other images they own, and the companies that use them (Nissan, SI, and the like) have their own smart lawyers who likely didn't just sort of bungle this particular case.  In other words, this picture was probably handled the exact same way as the thousands of other pictures whose rights legally trade hands for various uses, so Masck is going to have to somehow prove why this one is special.

IMO he's being a bit of a narcissist when he complains the name of Brian Masck didn't "go viral" with the rest of the picture.  Everyone can think of famous pictures and nobody can ever think of the name of the guy who took them.  Right or wrong that's how it is.

"We've beaten Michigan the last four years.  So where's the threat?"

- Mark Dantonio

Blogging the Virginia Cavaliers at http://fromoldvirginia.blogspot.com/<

January 20th, 2013 at 11:47 AM | "Strike a Pose" (Score:1)
BlueFish
BlueFish's picture
Joined: 08/21/2009
MGoPoints: 939

As I read the article this morning, I was half-wondering if I'd see MGoBlog listed as one of the defendants due to the "Strike a Pose" shirt in the MGoStore.  While it might not be an exact representation of the "iconic photo," it's clearly based on that event/photo.  I don't know copyright infringement law; perhaps a single-color outline doesn't qualify, or the "pose" on the shirt is noticeably different than the photo.  Good for the site, obviously.

If only Coach Mo hadn't gotten so drunk.

January 20th, 2013 at 4:47 PM | The fact that a person took a (Score:2)
BlueTimesTwo
BlueTimesTwo's picture
Joined: 06/30/2008
MGoPoints: 1826

The fact that a person took a picture of an event that was witnessed by 110,000 in person and millions on television doesn't mean that they own all rights to that event.  There is a world of difference between using that exact photo itself and making an artist's rendering of the event.

"People who love sausage and respect the law should never watch either being made."

January 20th, 2013 at 1:33 PM | the bigger the pie (Score:1)
BlueinLansing
BlueinLansing's picture
Joined: 09/01/2009
MGoPoints: 4199

the more people who want their share.

January 20th, 2013 at 2:31 PM | How can Desmond be at fault (Score:1)
FairleyStUHpid
Joined: 11/02/2012
MGoPoints: 54

How can Desmond be at fault in any of this?

January 20th, 2013 at 4:38 PM | Oops... (Score:2)
ChopBlock
ChopBlock's picture
Joined: 12/11/2011
MGoPoints: 1502

Oops...

"The straightest line from A to B is straight: From A to B"

"When you have Denard Robinson, you can have everything"

~George Walden

January 21st, 2013 at 8:07 AM | Got it (Score:1)
Wolverine9773
Joined: 11/25/2012
MGoPoints: 7

I have that picture framed and hanging in my Wolverine den. That was also my first game in the "Big House"!

Theme provided by Roopletheme; sidebars adapted from Chris Murphy.