Heisman Hostilities: The Tension Between Copyright and Right of Publicity in Celebrity Photographs

Desmond HowardSometimes, when you mess with the bull you get the horns.  Such seems to be the case in a copyright infringement action recently filed by photographer Brian Masck.  The case involves the photo displayed to the left, depicting football legend Desmond Howard.  Mr. Masck took the photograph at a game in 1991, the year that Mr. Howard would go on to win the Heisman Trophy.  The photograph depicts Mr. Howard striking a pose similar to the figure on the Heisman Trophy after making a big play in the game that day.

Over twenty years later, Mr. Masck has filed a lawsuit against several different defendants, claiming that they have infringed his copyright in the photograph by using it without his permission.  Fair enough, and obviously liability would depend upon the specific facts relating to each defendant’s use.   This case gets interesting, however, because Mr. Masck chose to include Mr. Howard, the subject of the photograph, as a defendant.

According to the allegations in the Complaint (which is quite a read –  the plaintiff claims that he is responsible for the cultural phenomenon of people, specifically including President and First Lady Obama, striking the “Heisman pose”), the plaintiff met with Mr. Howard in 2011 and 2012 to discuss a possible business relationship exploiting the photograph or Mr. Howard’s possible purchase of the copyright, but no deal was ever reached, and for a time Mr. Howard allegedly displayed a copy of the photograph on his own website.  This website display is the basis of the plaintiff’s copyright infringement claim against Mr. Howard.

Apparently, Mr. Howard did not take kindly to being sued by a photographer for using a photograph of himself on his website, particularly when he was the one who (1) made the play and (2) struck the pose that arguably made the photograph so iconic.  In response the Complaint, Mr. Howard filed a counterclaim against the photographer, including claims for Florida statutory misappropriation of name and likeness and federal unfair competition.  The counterclaims allege that Mr. Masck has been commercially exploiting the photograph on a website at thetrophypose.com, which prominently features not only Mr. Howard’s likeness in the photograph, but also extensively uses his name (the title of the website is “Desmond Howard Trophy Pose”) and even incorporates a feed of Mr. Howard’s tweets.  On that website, Mr. Masck sells several different types of products featuring the photographic image, including a life-size standup.

This case raises interesting copyright questions, including those of originality and joint authorship.  For example, is Howard a joint author of the photograph based upon his own decision to strike the pose, likely knowing that he would be extensively photographed?  Indeed, Masck’s own website states that “It was the combination of an extremely gifted athlete and a veteran photographer who, together, created and preserved one of the most iconic images in college sports history.”  Even more interesting, however, is the tension between the copyright interests of photographers who capture images of celebrities and the publicity rights of those celebrities.

Perhaps most interesting of all is the lesson in litigation strategy when selecting your defendants.

Here are copies of the Masck’s Complaint and Howard’s Answer and Counterclaims:

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