Kennedy Law: Photographer Sues ESPN for Copyright Infringement over Unauthorized Photo Use
Case Defends Rights of Independent Photographers against Large Publishers and Networks
DALLAS--(BUSINESS WIRE)--Sherry Martin of Sherry Martin Photography filed a complaint against Walt Disney Internet Group and ESPN in the United States District Court for the Southern District of California, alleging that Disney, ESPN and Competitor magazine published, without Martin’s consent, her photo of Dr. David Martin, a 66-year-old veterinarian and tri-athlete who was killed by a great white shark at Solana Beach in San Diego, Calif., (case number: 09 CV 1601 MMA POR).
“The facts demonstrate that ESPN and Competitor knew that any copying and use of Sherry Martin’s image was for promotional and commercial purposes, that she owned the rights to the image, and that copying and publishing the image would constitute copyright infringement”
Asked to cover the Solana Beach Triathlon in July 2007 by Osamu Chiba of Opix Photography, Sherry Martin photographed Dr. Martin (no relation) participating in the event. A written agreement was previously made between Sherry Martin and Opix Photography allowing her to retain all digital copyrights. In covering Dr. Martin’s death, Bob Babbitt, owner and publisher of Competitor magazine, contacted Chiba and Martin to discuss licensing rights to Martin’s photograph. Allegedly, when negotiations between Competitor and Martin failed, Opix sold her digital image of Dr. Martin to Competitor for the undervalued amount of $50, and Competitor magazine then published the photo in its June 2008 issue and provided it to ESPN, again without Martin’s consent, for an article published in October 2008.
“The facts demonstrate that ESPN and Competitor knew that any copying and use of Sherry Martin’s image was for promotional and commercial purposes, that she owned the rights to the image, and that copying and publishing the image would constitute copyright infringement,” said Stephen A. Kennedy, partner at Kennedy Law, which is representing Sherry Martin. “But they also knew that Martin was a young professional photographer without the deep pockets usually needed to protect intellectual property rights. With that knowledge, they made the conscious decision to infringe her copyrights.”
On behalf of Sherry Martin, Kennedy Law is requesting injunctive relief and impoundment, as well as damages, attorneys’ fees and taxable costs.
“Regardless of the amount of this judgment, I feel that this lawsuit gives me a platform to defend my rights and the rights of other photographers and artists,” said Sherry Martin.
Per the agreement, Martin retains ownership rights of all digital images taken in connection with any race being covered by Opix Photography. If someone wants to purchase an image in digital form created by Martin they must negotiate directly with her for the sale. Without Martin’s knowledge or consent, Osamu Chiba allegedly sold the photo to Competitor, bypassing her completely.
“This case is not about making money but about defending the rights of artists who produce something unique,” said Kennedy. “If the case creates precedent protecting other independent photographers and artistic creation, then it will be worth the time and effort involved.”
About Kennedy Law
Kennedy Law is a leading commercial litigation boutique that represents clients in select cases involving high stakes issues. The firm practices primarily in the field of intellectual property and general commercial litigation, focusing on patent, trademark and copyright infringement, misappropriation of trade secrets, and business technology disputes including computer hardware and software. The firm also represents clients in commercial disputes involving securities litigation, NASD arbitration and general litigation. To learn more, please visit www.saklaw.net.
About Sherry Martin Photography
Photographically published online and in local and international magazines, Sherry Martin’s commercial clientele includes San Diego Running Institute, Merrell Footwear, Subaru Primal Quest and Luxemont. Martin attended Brooks Institute of Photography in Ventura, Calif., with a concentration in photojournalism and sports photography. For more information about Sherry Martin, please visit www.sherrymartinphotography.com.