Adventures in Federal Court: The High Cost of Lousy Paperwork

Posted by on Thursday April 15, 2010 | Uncategorized

Vague license agreements and unregistered copyrights can be potent troublemakers, as Florida photographer Todd Latimer is learning from a handshake deal with a client that has caused him untold legal expense and grief. But is he a victim of his clients, his own carelessness, or some of both?

It all started back in late 2005, when motorcycle enthusiasts were abuzz about a new, supercharged bike model called the Kawasaki ZX-14, Latimer had what amounted to Top Secret clearance at a motorcycle shop to document the manufacture of two custom versions of the motorcycle.

The motorcycle shop, called Roaring Toyz, was customizing the bikes for Kawasaki, so that company could unveil the ZX-14 with much fanfare at Daytona Bike Week in 2006.  Latimer was assigned by Two Wheel Tuner magazine to document the Roaring Toyz customization for an article.

While work was in progress, Kawasaki asked Roaring Toyz for some photographs of the custom ZX-14s so it could hype the bike at a Las Vegas press conference before Daytona Bike Week. Kawasaki balked at the lousy images shot by Roaring Toyz employees. So the shop asked Latimer if he would shoot some images for Kawasaki, and do it on the double.

Latimer ended up shooting through the night of February 23, 2006 to meet Kawasaki’s deadline the next day. Kawasaki then distributed the images in a press packet at the Vegas press conference held before Daytona Bike Week. Not long afterwards Latimer stumbled across his images in the June 2006 edition of Hachette’s Cycle World magazine.

Latimer sued for infringement, alleging unauthorized use of his images by Kawasaki and Hachette. He said he thought he was shooting the images for a poster Kawasaki intended to display at Daytona Bike Week. Roaring Toyz said it had told Latimer that the images were for the Vegas press conference.

Latimer’s deal with Kawasaki was through Roaring Toyz; he never dealt with Kawasaki directly. Moreover, the agreement was oral, except for a few e-mails that referred to it vaguely. To make matters more complicated, Latimer’s deal to shoot the rush images for Kawasaki was tangled up with another deal he’d made with Roaring Toyz to shoot images unrelated to the ZX-14. Those unrelated images were also shot on a handshake.

In short, the case turned into a lot of “he said, he said” claims and counter-claims with almost no paper trail. A federal district court in Florida threw out Latimer’s lawsuit on the grounds that he gave an implied (read: unwritten) license to Kawasaki, and that Hachette’s use of his images amounted to fair use.

Latimer appealed, only to have the federal appeals court in Atlanta affirm the lower court’s finding of an implied license. The appeals court said there was evidence that Latimer knew Kawasaki intended to use the images for the Vegas press conference. But, the appeals court said, Kawasaki may have overstepped the terms of its implied license from Latimer. A jury will have to decide that, the appeals court said, and sent the case back to the district court.

Latimer also challenged the district court’s dismissal of his claims against Hachette. Hachette didn’t bring up the fair use defense, so the trial court overstepped by bringing it up for Hachette, Latimer argued. The appeals court agreed, and ordered the trial court to determine whether or not Hachette effectively waived the fair use defense by not bringing it up.

The bottom line? The misunderstandings are costing someone–possibly Latimer–a fortune in legal fees, and the case is far from over. Latimer’s attorney, Zachary Messa of Tampa, wouldn’t say who is paying the legal bills, or how much it has cost to date. But he said Latimer isn’t eligible for statutory damages because he didn’t register his images before the alleged infringement. So Latimer has to prove actual damages. (Attorneys usually don’t take such cases on contingency–ie, without charge unless the photographer wins. Messa declined to say if his firm is handling the case on contingency.)

As for the lack of written agreements, Messa said it is always “prudent” for photographers to make sure they get written agreements from clients. “However, the industry doesn’t operate like that,” he said. “Why don’t large companies [clients] insist on written agreements [that specify] what rights are being transferred?”

He adds, “Yes, it [Latimer’s case] will come down to testimony as to what rights were granted. But is that going to be a problem? No.”

Never mind that it has been a major problem for Latimer since 2006.

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