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. [Read more…]

Hot News Flash: Second Circuit Holds Hot News Misappropriation Claim Preempted

The Second Circuit has revisited the issue of New York “hot news” misappropriation claims, and the extent to which such claims are preempted by the Copyright Act.  The plaintiffs in Barclays Capital case were major financial institutions that not only provide securities brokerage services, but also provide research and recommendations concerning the purchase and sale of securities.  The plaintiffs distribute these recommendations largely to encourage transactions, and make their money on the transactions (not the recommendations themselves).  The defendant, flyonthewall.com, provides an electronically distributed news service and, among other things, uses various means to obtain the plaintiffs’ securities recommendations and then reports them. The plaintiffs sued flyonthewall.com for “hot news” misappropriation. [Read more…]