The photo where Desmond Howard does the Heisman pose after returning a punt for a touchdown against Ohio State is perhaps the most iconic photo in College Football history. The photo was taken by Brian Masck, who was an independent photographer at the time. Masck has now filed a lawsuit against numerous parties, saying that he wasn’t given the proper credit or financial compensation. Keep in mind that he filed this lawsuit in 2013, and the photo was taken in 1991.
Masck is suing Sports Illustrated, Nissan, Getty Images, Champions Press, Photo File Inc., Fathead, Wal-Mart, Amazon.com and Howard, claiming all misused his photo at some point in the last three years.
That would cover the statute of limitations for copyright infringement, which is three years.
Lawyers for the defendants declined to comment, so did Masck’s attorney. Howard could not be reached for comment.
The parties have until March 28 to respond to the lawsuit.
According to the 67-page suit, filed on Jan. 18, here is how some of the defendants used the photo, without ever crediting or asking Masck:
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In 2010 and 2011, Sports Illustrated ran a two-page advertising spread for Nissan using the Heisman photo in three issues.
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Howard published the photo on the homepage of his website in 2011.
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In 2011, Champions Press published the photo in Howard’s biography, I Wore 21.
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Fathead sold life-sized wall stickers of Howard’s Heisman pose.
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Amazon and Wal-Mart sold merchandise that featured the photo through their websites.
Masck wasn’t the only person to catch the photo, but he was the only one to get a full-body photo with Desmond smiling. On December 9th, 1991, the photo was published in Sports Illustrated and he was given $500 and his name was credited. The photo wasn’t copyrighted until August 31st, 2011 and Masck says he waited because of bad legal advice.
“There is a defense to lawsuits called ‘laches,’ meaning that the owner of rights has slept on his/her rights too long and therefore lost them,” said [Leonard] Rubin, a Chicago attorney whose specialty includes trademark and copyright law. “Masck has known of at least some of the various uses about which he now complains for around 20 years and did nothing. He may have lost his rights.”
Personally, I don’t see this case going very well for Masck. As Rubin said, he waited 20 years to copyright the photo, and 22 years to file a lawsuit. It’s his own fault for not getting out in front of this and getting it done sooner. Desmond Howard had a few comments to make about the lawsuit on Twitter:
Unpaid college football players beware. Potential land mines lie 22 years ahead.
— Desmond Howard (@DesmondHoward) March 11, 2013
One final note. If a reporter puts in writing that I could not be reached for comment, an effort should've been made to reach me for comment
— Desmond Howard (@DesmondHoward) March 11, 2013
It will be interesting to see how this all plays out.
