Sports Photographer: Don’T Mess Amongst My Copyright

Photographer Rogelio Albert Pena was at the correct house at the correct fourth dimension on May 16, 2016, when baseball game musician Rougned Odor, playing for the Texas Rangers team, punched Jose Batista, of the Toronto Blue Jays, during a game. Mr. Pena was able to capture the minute when Jose Batista was hitting inwards the human face upward so simply about past times Rougned Odor that he lost his sunglasses together with his batting helmet. Baseball is a non-contact sport, but the benches occasionally clear for an on-field brawl.

Plaintiff discovered that Defendant, a Dallas celebrity sports together with gift store, is selling framed copies of the photograph, amongst a “Rougned Odor: Don’t Mess With Texas II” caption below the picture. These framed photos reach non pose Plaintiff equally the writer of the work. Plaintiff has non licensed his operate to Defendant together with had non authorized such a derivative operate to hold upward produced together with sold.

On March 13, 2013, Mr. Pena filed a copyright infringement suit inwards the Southern District of New York against Celebrities Unlimited, claiming that it is selling copies of the photograph without authorization, together with without displaying the cite of the author. The illustration issue is 17-cv-1853.

Plaintiff is claiming that past times producing, publicly displaying, together with selling these framed photos, Defendant infringes on his copyright together with is seeking upward to $150,000 per operate inwards statutory damages. Plaintiff farther alleges that, past times removing together with altering the copyright management data which identified Plaintiff equally the writer of the photograph, Defendant violated Section 1202(b) of the Copyright Act, 17 U.S.C. § 1202, which prohibits to “intentionally take away or modify whatsoever copyright management information.” Plaintiff published the photograph online, together with was credited equally its author.

What could Defendant fence inwards defense? The defense strength of fair use is probable to fail, unless Defendant tin test that the operate is non protected past times copyright. The purpose of the photograph is commercial (fourth factor) together with Defendant used the entire operate protected past times copyright (third factor). The nature of the master work, the 2nd factor, is debatable: is the operate a photograph which Plaintiff snapped simply at the correct time, or is it an master composition?

The composition of the photograph resembles the i of a baroque painting: the 2 players are seen each on a dissimilar side of the work, non at its center. The arm of the musician inwards bluish enters the infinite of the musician inwards red, inwards a diagonal, together with the arm of the musician inwards cherry enters the infinite of the musician inwards blue, inwards diagonal. The leg of the musician inwards bluish enters the infinite of the musician inwards red, inwards a diagonal, together with the leg of the musician inwards cherry enters the infinite of the musician inwards blue, inwards diagonal. Both players sport beards. One musician is inwards red, the other i inwards blue. The musician inwards cherry is the i punching the musician inwards blue. The cherry uniform has bluish elements. The bluish uniform has cherry elements, including inwards the helmet seen flight away. The sunglasses cause got reddish lenses.

Is this photograph “the production of plaintiff's intellectual invention, of which plaintiff is the author,” equally is the photograph of Oscar Wilde that, inwards 1884, the Supreme Court constitute worthy of copyright protection inwards Burrow-Giles Lithographic Co. v. Sarony? In this case, the Supreme Court detailed the choices made past times the photographer, such equally “selecting together with arranging the costume, draperies, together with other diverse accessories inwards said photograph, arranging the dependent land so equally to introduce graceful outlines, arranging together with disposing the calorie-free together with shade, suggesting together with evoking the desired expression, together with from such disposition, arrangement, or representation, made alone past times plaintiff, he produced the icon present inwards suit." Plaintiff inwards our illustration did non select the player’s uniform, their stance, their expression, or the other accessories.

The photography at stake hither is registered amongst the Copyright Office, together with this registration is prima facie bear witness that it is protected past times copyright, However, 17 U.S.C. § 410 (c) states that, “[t]he evidentiary weight to hold upward accorded the certificate of a registration made thereafter shall hold upward inside the discretion of the court.” In others words, the courtroom may determine that a operate registered amongst the Copyright Office for less than 5 years is indeed protected past times copyright. Defendant may so purpose equally a defense strength a claim that the operate is non protected past times copyright. Plaintiff would so cause got to test that the operate is indeed the production of his intellectual invention… Did he modify it subsequently taking it? Did he emphasizes the colors or the shadows of the works, crop it to emphasize the dramatic moment?

If the courtroom would discovery that the operate is non protected past times copyright, it would grant Defendant’s motility to sack (yet to hold upward filed). Game over. If it would discovery the operate to hold upward indeed protected past times copyright, so Defendant’s final jeopardy would hold upward to test that its purpose of the photograph was so transformative that it is fair use, nether Section 107’s get-go factor. As explained past times the Supreme Court inwards Campbell v. Acuff-Rose Music, Inc., a operate is transformative if it alters the master operate past times adding "new expression, meaning, or message.” Influenza A virus subtype H5N1 satire or a parody is transformative: is the comment added nether the icon present plenty to become far a satire, of say, Texas?

Defendant, though, has a few innings ahead. He should non hire a rookie lawyer if he does non wishing to strike out.