Penalty Flag On Heisman Pose Photo
As readers of my blog know by now, I am a Notre Dame football fan. That carries with it some character traits. For example, I don’t like the University of Michigan. At all. And while Brian Kelly can claim Notre Dame’s true rival is USC all he wants, I always took more pleasure in beating the boys from Ann Arbor than I did the Trojans. It may have something to do with the fact that my first football season in South Bend was the year Harry Oliver kicked the improbable field goal to beat them. The fact that Michigan rejected me for its law school has nothing to do with it. That would be petty. And I’m not like that. Usually.
But despite my disdain for the Maize and Blue, I always kind of liked Desmond Howard’s Heisman pose in a 1991 game against Ohio State. Had he done it against the Irish, I would have considered it bush league. Against OSU, however, I found it awesome. The fact that he did it after returning a punt for 93 yards for touchdown was pretty spectacular.
Now that iconic photo is in the middle of a copyright lawsuit in a federal court in Michigan. A freelance photographer named Brian Masck snapped the shot. Sports Illustrated used it on its cover in 1991, and paid him $500. But since then the photo has shown up in lots of places that Mack never authorized. And the folks who used the photos didn’t pay him. Hence, the lawsuit.
But Masck may have a problem with a legal concept called “laches.” Laches is the legal equivalent of a late whistle. If a party waits too long before enforcing his rights, he may forfeit them. That is likely to be the defendants’ primary defense here. Masck apparently didn’t register the copyright, or do much of anything else to defend his position until fairly recently. And that may cost him. The case was only recently filed, so it’s hard to predict the outcome with any certainty.
But the lesson is clear. If you’ve created a work, especially one with a such high profile, you might want to register the copyright and keep an eye out for infringement. In the legal world “delay of game” can come with a sizable penalty.