If you shot this memorable, widely seen photograph capturing in real life one of the legendary poses in football, would you wait two decades to protect it and only then start to chase down those who you think wrongly used it without your permission? And what would be your legal chances of prevailing in litigation over it? Here’s a copyright infringement case that many wouldn’t make book on and that provides some key reminders to those in music, film or words who want protections for their creative works that, as in football contest, the clock can be a killer.
The eye-catching 1991 image of Desmon Howard, a onetime Michigan star, has become the legal football in a suit filed in January in a U.S. District Court in Detroit. After scoring a touchdown, Howard struck the pose that fans know best because it’s similar to that of the coveted Heisman Trophy, the collegiate game’s top honor that he would later claim. Photographer Brian Masck caught that perfect moment, earning $500 and a credit line when his picture originally appeared in Sports Illustrated. Masck now is suing SI, Howard and others for using the image for commercial purposes without permission, credit or payment. But did he dally too long to make his claim most effective?
Masck waited until 2011 to register a copyright for the photo. Per Section 507 of the Copyright Act, the statute of limitations for civil copyright proceedings is three years. Thus, Masck limited his suit to acts of infringement that he asserts have occurred within the last three years, including uses in Nissan advertisements and Howard’s own website.
The bigger hurdle for Masck may be a laches (unreasonable delay) defense. Considering the image’s ubiquity, it may be tough for a judge or jurors to fathom that Masck did not see unauthorized, uncredited uses of his work prior to his recent discoveries. Thus, Howard and others may be able to raise a laches defense, an older yet still viable copyright tactic in some jurisdictions. However, this case was brought in the Sixth Circuit, which allows laches to be raised on a copyright case only in rare circumstances.
If the sides can settle, will that sum be far less than the “$200,000 to $300,000” Masck initially requested? It’s a figure that Howard — a College Football Hall of Famer and former NFL Super Bowl MVP — did not take seriously.