Looks like I missed an update to the Richard Reinsdorf’s $250 million dollar lawsuit against Skechers from February of this year (thx for the tip Josh). To recap from my previous post “Skechers Sketchy Defense For Ignoring License Terms“:
The suit started when Reinsdorf discovered that images he took for Skechers from 2006-2009 and licensed to them for very specific terms–six months use in North America for point of sale, magazines and certain outdoor advertisements–were being used for several years and included in ads overseas and on packaging and other unauthorized media. The suit states that Skechers “completely and utterly ignored the terms of the license.” (source)
First reported by TMZ back in September of 2009 it took an unusual turn in 2010 when Skechers filed a motion to dismiss claiming ownership of copyright because of “alterations they performed on the images from slight modifications in models’ skin tone to the substitution of models’ body parts and the addition of substantial graphic effects.” They asked the judge to dismiss because they couldn’t possibly have infringed on their own copyright.
If you want to read the motion to dismiss you can download it (here). It certainly would set a disturbing precedent in the photography world if something like this were to be allowed. In the discussion the judge states that “Skechers is correct that a co-author in a joint work cannot be liable to another co-owner for infringement of the copyright” but that’s not what’s at issue here because “Contrary to Skechers’ assertions, the evidence in the record does not indisputably establish that Reinsdorf intended that his photographsbe incorporated into a joint work.” He simply gave them a limited license to their use. The motion to dismiss was denied.
A ruling on Skechers Motion for Summary Judgment dated February 6, 2013 (download it here) states:
Skechers has not demonstrated that the parties intended to be co-authors of the finished marketing images, which are, therefore, not joint works. Nor has Skechers demonstrated, as a matter of law, the lack of a copyright license agreement or breach of such argument. Accordingly, Skechers’ Motion for Summary Judgment is DENIED in these respects.
The expert opinions of Frank Luntz and Jamie Turner do not satisfy the requirements of Federal Rule of Evidence 702. Accordingly, Skechers’ Motions in Limine to exclude those opinions are GRANTED. Skechers’ objection to the Supplemental Report of David Connelly is SUSTAINED.
Given Plaintiff’s failure to adequately demonstrate a causal link between Skechers’ profits and its allegedly infringing conduct, Skechers’ motion for summary judgment on Plaintiff’s indirect profits claim is GRANTED. Skechers’ unopposed motion for summary judgment with respect to statutory damages and attorney’s fees is also GRANTED.
I found what District Judge Dean D. Pregerson has to say about joint authorship in this case interesting. While both parties intended that their separate contributions be merged into a unified whole this is different than an intent to be co-authors. The parties behaved in ways uncharacteristic of joint authors:
- Reinsdorf charged for his time and effort plus usage of the photographs.
- He attempted to limit Skechers’ use of its ads.
- Skechers sought to prevent Reinsdorf from making use of the finished images on his personal website
Finally, you can see that Richard was unable to demonstrate a relationship between the images he took and the profits Skechers received from shoe sales. And… the kicker… “he failed to register his photographic works within the period contemplated by the Copyright Act”, so he’s NOT eligible for statutory damages and attorney’s fees.