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…]