For University of Michigan football fans, it doesn’t get much better than defeating another Big Ten team. One of those defeats came back in 1991 when Michigan beat Ohio State University. After a touchdown, Michigan’s Desmond Howard rejoiced by posing in the same position as the player on the Heisman Trophy. A photo taken of that moment is the subject of a lawsuit by the photographer who captured it against some corporate giants that have used the image.
The photo became prophetic. Howard went on to win the actual Heisman, which is given to the player determined to the best in college football. He also had a decade-plus pro football career. The picture has appeared in “Sports Illustrated” magazine and has been used by Amazon.com, Wal-Mart and Nissan, as well as by Howard himself on his website.
There was just one problem for the photographer. He had not copyrighted the photo, so he was not paid for its use. He says he finally obtained a copyright in 2011, and now he wants to be compensated by the companies that used it. He was originally suing Howard as well, but he was dropped from the suit last year.
On March 10, a judge rejected the defendants’ calls to dismiss the suit. They argued that he can’t ask for payment for any use of the photo prior to its copyright. The judge (himself an alum of Michigan’s law school) ruled that “a question of material fact exists as to what constitutes the dates of infringement and whether or not the evidence [the plaintiff] has provided is enough to support awarding damages in his favor.”
The parties are reportedly discussing a settlement. It will be up to each side’s attorneys to determine what is best for their clients.
Companies often cannot predict where business litigation is going to come from. In this case, it was from a 20-plus-year-old photo. That’s why it’s essential that all businesses, regardless of their size, have a legal team that will work to protect their interests and help minimize costly litigation.
Source: WDIV-TV, “Photographer who snapped Desmond Howard’s ’91 Heisman TD pose wins ruling in copyright fight” No author given, Mar. 20, 2014