New legal poses for dispute over famous photo
Let’s click on the instant replay about a lawsuit filed by a photographer against Sports Illustrated, the subject of the photograph, Desmond Howard, and other companies the shooter claimed had used his photograph without permission. Just to jog your memory, back in 1991, photographer, Brian Masck, took a photo of Desmond Howard, then a University of Michigan star, posing as the Heisman Trophy during a Wolverine game against Ohio State University. Sports Illustrated used the photo in its publication, paid Masck $500, and credited him for the photo. Many years later, Nissan used the photo as part of an advertisement in Sports Illustrated, Fathead sold stickers of the photo, and Wal-Mart and Amazon sold posters and reproductions of the photo. The photo ended up becoming one of college football’s iconic images, yet Masck did not register it with the copyright office until 2011. Yes, we’re shaking our heads. But apparently Masck was told by his lawyer at the time that he did not need to register the photo. Last year, the court was unwilling to dismiss Masck’s unfair competition claims under the Lanham Act because it was not ready to conclude that his photo was an intangible. The court sought more arguments on the issue — and now that the guys in stripes, er robes, have blown the whistle, this legal play’s far from over. Instead, the court has...
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