Antitrust Law Daily Wrap Up, ADVERTISING NEWS: Sports Illustrated, Nissan, Others Accused of Infringing “Heisman Pose” Photograph in Advertising Spread, (Jan 22, 2013)

By John W. Arden, J.D., LLM.

Photographer Brian Masck has asserted infringement of his copyrighted “Heisman Pose” photograph of University of Michigan football player Desmond Howard in connection with a two-page advertising spread for Nissan automobiles appearing in Sports Illustrated magazine in October 2010 and August 2011. The complaint in Masck v. Sports Illustrated was filed in the federal district court in Detroit on January 18, 2013.

In additional copyright infringement counts against Nissan and Sports Illustrated, Masck alleges that Getty Images sold unauthorized licenses of the photo; that Champions Press published an unauthorized copy of the photo in its book I Wore 21; that Desmond Howard published an unauthorized copy on his website; that Photofile sold unauthorized copies of the photo; that Fathead published an unauthorized copy in a “fathead” wall-sticker graphic; and that Amazon and Walmart allowed merchants to sell copies of the photo.

Masck also brings claims of unfair competition under the Lanham Act and the Michigan Consumer Protection Act, as well as common law tortious interference and unjust enrichment.

Remedies sought include injunctive relief, actual damages, statutory damages, and orders impounding infringing materials pursuant to 17 U.S.C. §503.

The case is No. 2:13-cv-10226-GAD-DRG.

Attorneys: Thomas H. Blaske (Blaske & Blaske, PLC) for Brian Masck.

Companies: Sports Illustrated; Nissan North America; Getty Images, Inc.; Champions Press LLC; Photo File, Inc.; Fathead LLC; Walmart Stores, Inc.; Amazon.com, Inc.

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