He's being sued for infringement.  He has posted a copy of the image online without the consent of the original artist.  I haven't read the case and we don't know all the facts and circumstances.  He could have a problem, and then again, he may not, but it is not cut and dried.  He could have defenses.

A takedown notice is meaningless in this context.  The takedown notice goes to the ISP or hosting company, not the person infringing.  It is intended to protect the host, not the infringer. 

All that having been said, I understand going after Sports Illustrated, not him.  If this is about credit, the photographer should have dropped him a note asking for credit.  If he didn't want it posted, then he should have asked him to take it down.  It is pretty over the top to be going after the subject of the photo.   Whether or not he had grounds to sue, there are much better ways to handle this.

Sending Desmond a notice to take down image could be called a take down notice, couldn't it?

I think the first reasonable step in any case of infringement is to ask the person to take down the picture, not to immediately seek damages. And I suspect he'll be asked if he indeed asked, and if not, why not? (You don't get to just shoot trespassers without asking them to get off your lawn first.)

And if you read the article, it says he's suing SI because the photo was used in advertisements for other companies. Now I'm deducing a bit here -- do you think SI advertises with a car company or a car company advertises in SI? -- but sounds to me like in going after SI he's going after the completely wrong party.

Dumb.

if the images appeared in SI pages then it is entirely the right party.  not dumb.  its their mag.  They are responsible for every bit of content.  Its not like something they have no control over.  They have hold-harmless clauses for just this.

A "Takedown Notice,"  i.e. a "DMCA Takedown Notice" is a specific legal document with a definitive meaning and purpose.

Dropping a person a note saying:  "I noticed that you have an image of mine on your website.  I am flattered by the fact that you like my work, but I would appreciate it if you could remove it from your site immediately," does not, in any way, come close to the definition of a DMCA Take Down notice.

If, what you are saying, is that you think that he could have sent him a note, as I have described, you and I are in total agreement.  If you are terming that a "takedown notice," I would suggest that it is a poor choice of words on your part, but with that caveat, I agree with your comments.

You do have to be careful of using the words "takedown notice," because it does have a legal meaning.   That having been said, I think we are talking about semantics and not substance.   I have certainly been guilty of not choosing my words carefully in the past.

read closer. it was in an advertisement.

huh?????? Desmond clearly has used the image to promote his brand.  He obviously thought it was valuable enough to consider buying the copyright. Desmond certainly makes $$$ from appearance and autograph fees.  So anybody can use a photo on a website as long as they don't sell prints for it? 

Can Ford take anybody's photo of a Mustang and use it for world wide advertising as long as they don't sell prints of it?  How do images on a business website not promote that business?

It is obvious that the photographer did receive poor legal advice in the past, but also that several businesses have used the photo without license and a clear copyright violation.

Desmond will win. Usage does not mean copyright infringement. Proof will have to be shown that he profited from using that image. That's not happening considering the photographer seems to be a procrastinating idiot when dealing with such an important image.

According to you, all athletes must purchase copyrights to every single image of their likeness that is posted on their website, Facebook, MySpace etc etc. LOL

You read closer.  It was an advertisement RUN IN SI.  That means that SI chose to print it.

I don't why you're LOLing, because he's right.

Facebook and Myspace (and all those other places) have a line in their EUAs that says that any photos uploaded are licensed to that site.  That means that once a photo is uploaded to a social media site, the owner has waived their right to sue if it gets passed around.

A personal website has no such disclaimer.  It is illegal to post someone else's photos on your own site, with or without credit.  You must link to the copyright holder's site in some form or another.

The reason social media sites have that line in the EUA agreement is because otherwise, reposting photos would be illegal.  Think about it ... if it was already perfectly legal, then why would Facebook not only make you sign off on it, but remind you about it from time to time?

According to the article, they discussed transfer of copyright.  It would seem to me that Desmond was aware of the status of the picture and a case could be made for willful infringement.

Also, and everyone should know this, the copyright is automatic.  He had to register the picture to be able to file suit.  Now he is limited to actual damages and statutory damages are unavailable.

One thing that is interesting is the stature of limitations.  I wasn't aware that there was a statute of limitations, and it's 3 years.  So, it looks like the photographer can only sure for the recent infringements.

http://www.copyright.gov/title17/92chap5.html#507

No, he isn't. There's usage and there's infringement. Not even magazines....who are in business to profit....own every image in their magazines. If you think otherwise, you would wrong.

read even closer.  they are responsible for every bit of content. In case you have not figured it out the 2nd time, that includes ads.  it also (in case you havent caught on) includes tear-outs, freebies and promotions, cover to cover. or in the case of something sent in a wrapper in the mail, everything inside the wrapper.  It is their mag, not the advertisers. they are the ones to sue.

I have no fkn clue what you are trying to say.

Yes-all people and businesses need to purchase a license to legally publish images for commercial use.  I don't see how publishing on FB is legally different than your own website, even though it is certainly uncommon for full federal copyright suits over FB alone.  This is fundamentally the right of the copyright owner.  While I am not a lawyer, unlicensed use of an image will certainly cause damage to the value and further licensing of the image.

In this case, the 3 year statute of limitations is certainly a problem for the Photographer. Regardless, the principles of federal copyright protection remain.

did you read the article to the end? or just the first paragraph?

"Masck's suit claims Howard unlawfully posted the photo to his website in 2011.

It also accuses Sports Illustrated of unlawfully using the photo in an advertising spread for Nissan automobiles in 2010 and 2011. "

the claimed infringement occurred in 2011.  we are in 2013. 2013 less 2011 is 2. 2 years is less than 3.  how is the statute of limitations applicable.
unless you are going by the old Mayan calendar ...still time left on the 3 years.
(and most people picked up a new Mayan calendar at the cash of their local mayan grocery store)

You may, in fact, be right. But he seems to be very uninformed from what I read. His mentality seems to be that because he was the subject of the photo that it's absurd that someone else would own the rights to it. That's Copyright 101 and comparable to the models who start threads here thinking because they are the subject that they somehow have some ownership.

Now, whether he was profiting if a far different, and more complex, question. I'd have a tough time believing that he hasn't profited in some way from that iconic image. It was his trademark and the pose he's best known and how he's promoted.

What's even more interesting (and ironic) is that he could probably have been sued by the Heismann Committee because it could be argued that that pose he did on the field is THEIR trademark. He copied that from them.

And maybe the Heisman people could sue the photographer for infringing on their trademark lol.

I'm assuming the photographer didn't produce the image as a "work for hire" arrangement with his employer where he has no ownership (doesn't seem like it since he's suing) but I do find it inexcusable that the photographer hasn't made money off an image that has been featured on posters, magazines, billboards, etc.

It's definitely a tangled web.

I find the stronger case to be against SI. There is no doubt they used the image commercially.

The posting of the photo to Desmond's personal website COULD be argued as a non-commercial/promotional use (like we use photos in our portfolio). I say COULD because there is certainly more to debate on those grounds than SI's blatant use of the image for financial gain.

Regardless, I think I'd advise Howard to stop making public comments about the case. He's not helping his cause.

ummmmm no.  a body position is not a trademark.  you can swoosh all you want.  just dont affix it to some medium, tangible or otherwise.

It's been argued and I was posing the question that's been raised numerous times in regards to the pose. I'm not saying I agree with it but it's not as simple a blanket comment as "no, a body position is not a trademark." The body position in this case is so iconic that we all know "the pose". In fact, it's called The Heisman Pose."

But this reminded me of another often heard argument in TM circles. The NBA by its own admission used the likeness of Jerry West for the NBA logo we see today. The NBA trademarked that logo of course. But does Jerry West have any claims to the use of "his likeness"? I'm not saying it correlates directly to this case because there was no copyrighted image that sparked the logo...just an interesting use of TM and who holds the rights.

There is no such thing as 'usage' in American copyright law.  There is 'fair usage', and this does not meet any of the requirements - not even if you're really super mega generous about it.

An image can be licensed, meaning that it can be legally used for any agreed-upon reasons.  That license only applies to the licensee, and they have no legal right to extend it to a third party under any circumstances, unless the copyright holder says otherwise.  In the case of social media sites, there is no extension of license, as the reposted images all stay on Facebook or wherever.  Facebook already holds the license to show that image, so it doesn't matter what Facebook page it appears on.  They can even use it on adverts and home pages, so long as it stays on the website.

Copyright is automatic, unless SI employee contracts say otherwise.  They obviously don't, or else SI would hold the copyright right now, and there would be no lawsuit.

Any use of copyrighted material not exempted under the Fair Use clause is infringement.  There are no degrees of infringement, and there are no degrees of fairness.  Either it falls under the Fair Use clause, or it is infringement.  In is black, or it is white.  It might be grey if a judge or legal team is still hammering it out, but come decision time it will always be black or white.

I think he's trying to say that he doesn't grasp the idea of licensing.

The beginning of the article implied that the case concerned usage going back further than 2011.  It wasn't very clear in the way it was presented.

It was more of pointing out an interesting point that doesn't get talked about much.

The issue isn't about $$ derived. It about making a "copy", and using it, without permission.

I've sued and won simply based on unauthorized copy & usage.

That is all true, but the usage appears to be very limited.  We also don't know if he got the image directly or if it was a tear from SI.  Likewise, we don't know the context of the usage.

He may have wanted to purchase the copyright so that he could exploit the image commercially.  When he found it was not viable, he may have just grabbed it from SI (or any other viral source since it was widely available) and said, "Hey, here is a kewl picture of me."

Depending on the exact usage, there could be fair use.  It could also be infringement.  Not really having read the complaint or his answer, it is all just speculation.

For the record, this could also be a "sour grapes" suit, as it applies to him.  He might have been named because he didn't pay the $200k and it pissed the other guy off.

The courts have generally not found hotlinking to be infringement.

You seem to be an authority on the subject, so why don't you post case law or examples of publications being held liable for content in advertisements that they didn't produce in-house.

I mean, what do I know, I've only worked with 50+ magazines for over 20 years and have never seen their advertising departments police each ad they sell. One might think they have clauses in their ad sales contracts that defer responsibility for the content of the advertisement onto the advertiser and away from the publication--but, since you are an expert, you probably already know that.

I guess if you follow that logic, if the ad was on a billboard, you would sue Gannett-Outdoor who put up and rented the billboard and the farmer who rented Gannett the land.

the usage occurred before the negotiations.  not that 'willful' matters or not. infringement is infringement and the courts dont care.  Since MM seems to care I figured i would point out that this negotiation and $$$ offers/rejection/etc occurred after the alleged infringement.  but like i said, it doesnt make the case any worse (or better).

stick to tear sheets.  you dont know the law.  Zack Zoll clearly understands this a lot more than you do.   Everyone just has a hold-harmless clause so the mags dont care as long as the ad client has deep enough pockets or contingencies for this.
EDIT: you asked for a cite?  good try.  I could have jumped on westlaw or lexis/nex and found binders full of cites, but I figured it would be more instructive to demonstrate this way. Google "magazine held liable for advertising"  see the hits? the very first one is for a fkn classified ad, not even a quarter pager.  http://www.nytimes.com/1992/08/19/us/so … -s-ad.html

you should click on some of the other links. you might learn something

AVD AlphaDuctions wrote:
EDIT: you asked for a cite?  good try.  I could have jumped on westlaw or lexis/nex and found binders full of cites, but I figured it would be more instructive to demonstrate this way. Google "magazine held liable for advertising"  see the hits? the very first one is for a fkn classified ad, not even a quarter pager.  http://www.nytimes.com/1992/08/19/us/so … -s-ad.html

you should click on some of the other links. you might learn something

really? that's the best you can do? did you see this sentence:

"where the ad on its face, and without the need for investigation, makes it apparent that there is a substantial danger of harm to the public."

actually following your google search I found 3 magazine media kits on the first page that had language like this:

"3. Advertiser and Agency represent and warrant that: (a) they have the right to place the advertisement in the magazine or web site; (b) nothing contained in the advertisement violates or will violate the intellectual property rights, confidentiality rights, proprietary rights, privacy rights, property rights, or contract rights of any person or entity; (c) nothing contained in the advertisement will defame or disparage any person or entity; and (d) nothing contained in the advertisement will violate any law, rule, or regulation, including without limitation any U.S. Postal regulations."

Which is kinda what I said in my post, so thank you for backing me up.

backing you up? yer joking. too much beer on St-Patricks day?

i get really tired or arguing with people who dont know how to read.  No, you did not say that in the post. You said the complete opposite.  The whole fucking point of the hold harmless clause is to prevent the mag from taking a hit.
now why the fuck would they be worried bout taking a hit ? because they are on the hook. They are liable for everything they print. That's why you have hold-harmless language like you just copy pasted.  do you think that stuff is there for no reason?  srsly.

now please do us all a favor and shut it about stuff you know nothing about.  I had hoped you would read those links specifically and understand. but nooooooo...you had to come back and pretend you invented them or something.In your eleventeen billion years in the industry you did not learn how the law works.  you just learned how to argue badly.

as for your first attack, yes of course I could do much better. I have access to all the legal research online plus law libraries here. In fact I specifically told you I could do better. So why are you coming back with a line asking if I could do better? what kind of passive aggressive shit is that?   I linked to something you can read and even read for free (although comprehending is another story).

from Sports Illustrated's actual media kit:

"All advertisements, including without limitation those for which Publisher has provided creative services, are accepted and published in the Magazine subject to the representation by the agency and advertiser that they are authorized to publish the entire contents and subject matter thereof in all applicable editions, formats and derivations of the Magazine and that such publication will not violate any law, regulation or advertising code or infringe upon any right of any party. In consideration of the publication of advertisements, the advertiser and agency will, jointly and severally, indemnify, defend and hold the Publisher harmless from and against any and all losses and expenses (including, without limitation, attorney’s fees) (collectively, “Losses”) arising out of the publication of such advertisements in all applicable editions, formats and derivations of the Magazine, including, without limitation, those arising from third party claims or suits for defamation, copyright or trademark infringement, misappropriation, unfair competition, violation of the Lanham Act or any rights of privacy or publicity, or any unfair commercial practice or misleading advertising or impermissible comparative advertising from any and all claims or regulatory breaches now known or hereafter devised or created (collectively “Claims”)."

I am going to try to make a comment here without flames flying on both sides.  This is getting a bit too heated.  Here is the seminal sentence in what Dan has quoted:

What Dan appears to be saying is that the publication includes in their contract, language intended to protect them against being sued or held liable for advertisements being placed by third parties.  That is entirely true.

What AVD is saying is that the reason why they are including it, is because they can be held liable, which is true as well.  AVD's point is; "why have an indemnification clause if there is no risk or liability?"

Courts find vicarious liability all the time and for the strangest of things.  What the indemnification clause says, is that if the magazine gets sued, the advertiser will pay for all legal fees and any judgment against the magazine. 

So, as I see it, Dan is completely correct, publications do a good job of protecting themselves against liability arising from the advertisements placed.  AVD is correct that there still, can indeed be liability.  The contract does not prevent the magazine from being sued, it only permits them to go after the advertiser to pay any of their costs.

All of that having been said, magazines and publications do not have "absolute liability" for the acts of their advertisers.  For them to have vicarious or contributing liability, certain conditions have to be met.  The bottom line is that the primary liability will always fall to the advertiser.  As to whether or not the publication has any liability will depend on the specific facts of the case.

Now let's all make nice.  I like both of you.

He can still attack profits from  the businesses regardless of when it was registered.  You are right, the other statutory damages may be lost.  Profits can still be a big stick. 

I guess we will find out in time.