An advertising agency is suing former presidential candidate Herman Cain and his publisher Simon & Schuster alleging copyright infringement over the photo that serves as the cover of Cain’s book, This is Herman Cain!
In a lawsuit (Google doc) filed in federal district court in Atlanta, Adventure Advertising, LLC alleges that the company performed a photo shoot for images to be used in Cain’s presidential campaign by Friends of Herman Cain, Inc. (FHC). The complaint contends that although FHC bought three photographs, the copyrights for them were never transferred and neither were rights to use the photos beyond campaign materials.
A few months later, according to the lawsuit, T.H.E. New Voice, a company owned by Cain, agreed to purchase one photo for publication in a magazine and then requested a high resolution image of the photo in question (now on Cain’s book) for possible purchase, which was sent but never invoiced for.
Thereafter, the complaint continues, T.H.E. New Voice asked permission from Adventure Advertising to use the second photo, which still had not been purchased, on a book cover for Simon & Schuster, but the request was never acknowledged or responded to by the advertising company. Instead, the plaintiffs allege, T.H.E. New Voice paid for the first photo but with a handwritten notation on the invoice, “For cover photo: This is Herman Cain.”
The second photo ended up as the cover of the Simon & Schuster book according to the lawsuit, in violation of Adventure Advertising’s copyright as the company had never sold the image or any rights concerning it to T.H.E. New Voice. The plaintiffs now ask that the court enjoin defendants from continuing to sell the book with the photo in question on the cover and award the plaintiffs “all gains, profits, and advantages received or derived by Defendants” from the use of the photo as well as damages and attorney’s fees.
From the complaint, this sounds like a bookkeeping error that could have stayed out of court with better communication on all sides, but it does remind the rest of us to be absolutely clear on who owns the copyright on photos before using them, especially for commercial purposes.