Former Michigan star Desmond Howard is being sued for his Heisman pose.
Brian Masck, the photographer who snapped Howard doing the iconic pose following a 93-yard punt return for touchdown against Ohio State in 1991, is claiming the photo was used without permission and is suing several media sites and entities, including Howard, who have used the photo. Masck brought the suit in January and Howard finally opened up about it last Friday.
Howard uses the photo on his own website, but said he has never profited off it.
In fact, Howard said he and Masck have discussed the photo extensively and Howard even tried to buy the rights. However, the $200,000 price tag was a little too steep.
"It baffles me," Howard told the Detroit Free Press. "It seems absurd that someone can come after you more than two decades after you've played your last down and sue you over your own likeness."
Howard said he plans to “vigorously fight” the suit. The one thing he does have going for him is that he hasn’t profited off the picture, unlike some of the other parties named in the suit. Also, Masck didn’t file for a copyright on the picture until 2011 – 20 years after it was shot. And now, 22 years later, he’s seeking some sort of compensation from a photo that went viral years before he ever copyrighted it.
The statute of limitations for copyright infringement is three years, so the lawsuit specifically targets Sports Illustrated, which used the photo for a Nissan advertising campaign in 2010 and 2011 as well as Wal-Mart and Amazon, which are accused of selling the image on their websites without permission.
"This case is not about a photograph going viral. It is about getting credit ... And yes, it is also about the money," the lawsuit states. "The Heisman pose and Brian's iconic photograph which captured it have both gone viral. The name Brian Masck has not."
While I’m no lawyer, it seems like it’s going to be difficult to prove that Howard has profited off the image and is therefore liable for copyright infringement. While I also believe the photographer should be compensated for his work, to come after parties 22 years after he snapped the photo seems a little ludicrous.
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