By Ed White
Associated Press
DETROIT (AP) — A photographer who took an iconic 1991 picture of Michigan football star Desmond Howard in a Heisman Trophy pose has cleared an important hurdle in a lawsuit against Sports Illustrated and others accused of using it without paying him.
But the magazine, Nissan North America, Amazon.com, Wal-Mart Stores and others are asking a federal judge to reconsider his recent decision, saying it was erroneous.
The photo by Brian Masck shows Howard posing like the player on the Heisman Trophy — left leg up, left arm outstretched — after returning a punt for a touchdown against Ohio State.
Howard later won the trophy as college football’s best player and played for many teams during an 11-year career in the NFL.
Masck admits he waited 20 years, until 2011, to get a copyright on the photo, but that he wants to be paid.
The defendants argue that Masck can’t pursue a financial award if the photo was used before he obtained a copyright. But U.S. District Judge Gershwin Drain declined to dismiss key portions of the lawsuit.
“At the very least, a question of material fact exists as to what constitutes the dates of infringement and whether or not the evidence Masck has provided is enough to support awarding damages in his favor,” Drain said in a March 10 opinion that keeps the case alive.
Howard was a defendant in the lawsuit, too, but the judge dismissed him last June.
Meanwhile, the parties have been discussing a possible settlement. The next session is set for April 1.
In describing the photo, Drain, who has a law degree from Michigan, noted that the Wolverines “soundly defeated” Ohio State that day in 1991.
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