Photographer of iconic Desmond Howard photo sues for infringement

Submitted by m1817 on January 20th, 2013 at 7:27 AM

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/sports…

Comments

Dutch Ferbert

January 20th, 2013 at 8:26 AM ^

"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.

superstringer

January 20th, 2013 at 9:13 AM ^

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.

I Like Burgers

January 20th, 2013 at 9:59 AM ^

That and (pretty sure I'm remembering this right) college athletes don't have rights to their image when they're playing for a university.  They sign all of that away in return for their scholarship.  Its like when you come up with a million dollar idea while working for a company.  In most cases, the company owns that idea -- not you.  This is one of the sticking points on whether or not athletes should be paid, and its come up in the EA Sports lawsuits as well.

LSAClassOf2000

January 20th, 2013 at 8:38 AM ^

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. 

superstringer

January 20th, 2013 at 9:09 AM ^

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!

Danwillhor

January 20th, 2013 at 9:22 AM ^

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.

Michigan Mizo

January 20th, 2013 at 9:41 AM ^

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.

bluebyyou

January 20th, 2013 at 10:08 AM ^

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.

GoBluePhil

January 20th, 2013 at 10:35 AM ^

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.

MaizeAndBlueWahoo

January 20th, 2013 at 10:50 AM ^

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.

MaizeAndBlueWahoo

January 20th, 2013 at 12:14 PM ^

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.

BlueFish

January 20th, 2013 at 10:47 AM ^

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.

BlueTimesTwo

January 20th, 2013 at 3:47 PM ^

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.