A timeless video exists online showing a 93-yard punt return for a touchdown by the University of Michigan’s Desmond Howard in a 1991 game against Ohio State. In the end zone, Howard struck a pose similar to the Heisman Trophy, the award annually given to the most outstanding player in college football. Howard indeed went on to win the Heisman, and his pose became as iconic as the trophy itself. Freelance photographer Brian Masck was properly credited when his photograph of the moment appeared on the covers of Sports Illustrated and the EA Sports video game “NCAA ‘06 Football.”
However, the Detroit News reported that Masck alleges several entities have used the portrait without his consent. He filed a lawsuit against Howard and several other companies for copyright infringement. Masck was granted a copyright for the photo in 2011, and the News reported that he “unsuccessfully sought as much as $300,000 to sell the copyright to Howard and for a separate business venture.” Getty Images, Sports Illustrated, Champions Press LLC, Wal-Mart, Amazon and Detroit-based sports graphics company Fathead LLC were also named in the 63-page lawsuit.
Most of the defendants in the lawsuit are accused of copyright infringement, but the News reported that Sports Illustrated and Nissan are named for publishing a “direct and identical copy or substantially similar copy of Brian Masck’s Registered Photograph.” Masck altered the shot to remove the branding on the glove on Howard’s right hand and extended the lettering on the football to ensure that he could identify an unauthorized image, according to the News. “These small alterations do not appear to the untrained eye, but assist Brian Masck in tracking infringing uses of his photograph,” the lawsuit says.
Tuscaloosa, Alabama-based photographer David Smith wrote in a blog post on January 21, 2013, that the lawsuit may be a “money grab,” but it is justified based on the number of organizations that have profited from Masck’s work. “Brian Masck deserves the recognition and credit for taking such an iconic shot,” Smith wrote. “Desmond Howard striking the Heisman pose is something that will be shown for years and years, and the name behind the photograph needs to be known.”
Additional information about intellectual property litigation can be found on our website. Did you need help obtaining a copyright or filing a lawsuit against another party that used your protected material? Contact our firm right now at (323) 653-3900 or fill out the form on this page to let our Los Angeles copyright infringement attorney review your case.
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