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Dallas Photog Wins $275K Infringement Settlement
June 08, 2005
By Jay DeFoore
North Texas-based photographer Walter Smith has won a $275,000 settlement with the Dallas Cowboys after the team used one of Smith's pictures on T-shirts and other merchandise without his permission. But after the monetary settlement was reached in March, the Cowboys barred Smith from ever working in Texas Stadium, the building where the Cowboys play.
The photo, a shot of Cowboys running back Emmitt Smith kneeling on the Cowboys logo in the middle of Texas Stadium during a game in 2000, is considered one of the defining moments of the star running back's career.
Walter Smith provided the Cowboys with a digital file of the photograph, which the team considered but ultimately declined to use on season tickets. The team later purchased 250 copies of the picture for resale to the public.
Then, without seeking Smith's permission, the team began selling the image on T-shirts, sweatshirts and other items with the caption "Defending the Star."
Smith first noticed the image on merchandise for sale at the state fair. When he called Cowboys officials, they initially offered him $1000 in merchandise gift certificates. Smith tried to negotiate a settlement on his own for the better part of a year before finally hiring a lawyer. In all, the dispute has taken three years to reach a conclusion.
When asked to comment, Smith expressed frustration at what he called a "vindictive" decision by the team to revoke his credentials after the monetary settlement had been reached. Smith, who operates a company called Impact Images, supplies photography to the NFL referees, and was taking pictures in this capacity when he captured the fateful photo of Emmitt Smith. The photographer says the credential ban will now force him to go on the road, at considerable cost, to conduct his business.
"It's just shocking to me that an organization supposedly as professional as the Cowboys can commit an oversight like that and then tell someone they can't do their job anymore," Smith says. "It's their mistake, not mine."
Levi McCathern, the lawyer who represented the Cowboys in the dispute, could not be reached for comment in time for this article.
By some accounts, the Cowboys may have gotten off easy. Jim Davis, a lawyer at Dallas' Davis Munck, P.C., who negotiated the settlement on Walter Smith's behalf, says the photographer could have recovered a much larger settlement had he officially registered his copyright to the image prior to the infringement.
"Copyright registration gives you a lot more firepower [in seeking damages]," Davis says. "A homerun recovery could have been over a million dollars."
Davis concedes that had Smith's case gone to trial, he would have been forced to prove actual damages, and his recovery would not have included legal fees or punitive damages.
Both Davis and Smith say the lesson to other photographers is to register their copyright to valuable images before they encounter any problems.
"From now on, anything [I photograph] that has a chance of a sale will be copyrighted before the sale even occurs," Smith says. "You need to be aware that this is what you need to do to protect yourself."
Davis says recent changes to the process of copyright registration have made it easier than ever to apply for and be granted full copyright protection.
Still, a recent unscientific poll on www.pdnonline.com indicates that few photographers register their work with any regularity.
June 08, 2005
By Jay DeFoore
North Texas-based photographer Walter Smith has won a $275,000 settlement with the Dallas Cowboys after the team used one of Smith's pictures on T-shirts and other merchandise without his permission. But after the monetary settlement was reached in March, the Cowboys barred Smith from ever working in Texas Stadium, the building where the Cowboys play.
The photo, a shot of Cowboys running back Emmitt Smith kneeling on the Cowboys logo in the middle of Texas Stadium during a game in 2000, is considered one of the defining moments of the star running back's career.
Walter Smith provided the Cowboys with a digital file of the photograph, which the team considered but ultimately declined to use on season tickets. The team later purchased 250 copies of the picture for resale to the public.
Then, without seeking Smith's permission, the team began selling the image on T-shirts, sweatshirts and other items with the caption "Defending the Star."
Smith first noticed the image on merchandise for sale at the state fair. When he called Cowboys officials, they initially offered him $1000 in merchandise gift certificates. Smith tried to negotiate a settlement on his own for the better part of a year before finally hiring a lawyer. In all, the dispute has taken three years to reach a conclusion.
When asked to comment, Smith expressed frustration at what he called a "vindictive" decision by the team to revoke his credentials after the monetary settlement had been reached. Smith, who operates a company called Impact Images, supplies photography to the NFL referees, and was taking pictures in this capacity when he captured the fateful photo of Emmitt Smith. The photographer says the credential ban will now force him to go on the road, at considerable cost, to conduct his business.
"It's just shocking to me that an organization supposedly as professional as the Cowboys can commit an oversight like that and then tell someone they can't do their job anymore," Smith says. "It's their mistake, not mine."
Levi McCathern, the lawyer who represented the Cowboys in the dispute, could not be reached for comment in time for this article.
By some accounts, the Cowboys may have gotten off easy. Jim Davis, a lawyer at Dallas' Davis Munck, P.C., who negotiated the settlement on Walter Smith's behalf, says the photographer could have recovered a much larger settlement had he officially registered his copyright to the image prior to the infringement.
"Copyright registration gives you a lot more firepower [in seeking damages]," Davis says. "A homerun recovery could have been over a million dollars."
Davis concedes that had Smith's case gone to trial, he would have been forced to prove actual damages, and his recovery would not have included legal fees or punitive damages.
Both Davis and Smith say the lesson to other photographers is to register their copyright to valuable images before they encounter any problems.
"From now on, anything [I photograph] that has a chance of a sale will be copyrighted before the sale even occurs," Smith says. "You need to be aware that this is what you need to do to protect yourself."
Davis says recent changes to the process of copyright registration have made it easier than ever to apply for and be granted full copyright protection.
Still, a recent unscientific poll on www.pdnonline.com indicates that few photographers register their work with any regularity.