Lessons in the Image Red Zone: Don’t Get Sidelined for Your Image Usage

8

September

2017

It’s football season!  Hopefully at this point you have your team’s schedule ready and your fantasy teams drafted.  The only thing you have left to do is make sure your fantasy team is represented by a representative (albeit witty) photo.  Now how do you do that? 

Most will hop on Google images and *ahem* “borrow” one.  You know, for science.  (By science we mean the complex decision making and hypothesis-driven experimentation process that comes part and parcel with deriving the best photo you can create for your fantasy league.)  It doesn’t take someone with a referee degree to see to know that using someone else’s photo without regard to its ownership or asking for permission doesn’t always end in a touchdown.  Want another look at some plays that resulted in a coach’s challenge?  Here are two examples where taking someone else’s photo ended in a heavy hit.

A Gronking to Remember.  In 2014, Lacey Noonan published A Gronking to Remember, an erotic fiction novella where a young couple’s relationship is torn apart over a woman’s obsession with the New England Patriots tight end Rob Gronkowski.  Yes, you read that correctly.  The book’s cover featured a prominent photograph of a young couple alongside with what appears to be Gronkowski lurking in the background.  The book claims to be the first in a series of Gronk-inspired erotica.  Hey, if it worked for 50 Shades and Twilight, why not football fiction?

However, the Ohio couple whose image appeared on the cover didn’t find the book to be a touchdown—or even a first down for that matter. The Ohio couple claimed they never gave permission for the image taken from their wedding to be used on the cover of the book. The couple filed a complaint against the author and online retailers of the book, alleging violation of their right of publicity.

In March 2014, the Southern District of Ohio denied Noonan’s motion for summary judgment (a court order ruling that there is no genuine issue of material fact and the cause of action can be decided without a trial), rejecting the author’s argument that the use of the image was not commercial in nature. The online retailers also filed for summary judgment, claiming they were protected from liability under §230 of the Communications Decency Act. In other words, Noonan was relying on a law that stated that online intermediaries that host or republish content, including pictures, are protected against laws that would otherwise hold them legally responsible.  The Court noted that §230 was inapplicable here, holding that the online retailers were not “publishers” for purposes of Ohio’s publicity law.  Later that year, the Court certified an appeal by the plaintiffs to the Sixth Circuit Court of Appeals, which will allow the couple to determine the possible liability of the online retailers before continuing with their claims against the author.

CBS Gets a 15-Yard penalty for unsportsmanlike conduct.  During the 2016 football season, New York Jets quarterback Geno Smith suffered a broken jaw during preseason as a result of a locker room altercation.  Photographer Angel Chevrestt captured photos of Smith playing catch outside his apartment following Smith’s jaw surgery.  Chevrestt licensed the photos to the New York Post, who printed the photos as an “Exclusive.” These were the first photographs of the quarterback since the altercation and jaw surgery.  CBS then reprinted the image, without permission, on their website and on screen during an NFL game telecast.  Subsequently, Chevrestt filed a copyright infringement complaint against CBS alleging both infringement and improper removal of copyright management information.  CBS had planned to assert a fair use defense, however the case ended up settling.

While borrowing someone’s else’s photo without their permission doesn’t always end in a touchdown getting called back, it is best to avoid these penalties in the first place.  Do you want to be known as the team with the most penalties during a season?  At the very least, these cases teach that giving proper credit, or even getting permission, can go a long way.

[Editor’s Note: We did not purchase a copy of “A Gronking to Remember” for research purposes, despite numerous requests from our associate, Ashley.]

[This article was prepared and written by Ashley Winslow, our intellectual property rookie. Based on an original article from the Trademark and Copyright blog – http://www.trademarkandcopyrightlawblog.com]

Lessons in the Image Red Zone: Don’t Get Sidelined for Your Image Usage

time to read: 5 min