Brian Duffy was an English photographer. He died in 2010 but the Brian Duffy Archive owns and enforces the copyright in his works. Defendants are small retailers around Chicago who developed and sold gift items alleged to appropriate one of Duffy’s well-known David Bowie photos. Who among us hasn’t wished for a Rebel Rebel Pouch or a Ziggy Stardust Koozie? Apparently not the Brian Duffy Archive. It has sued for copyright infringement.
Plaintiff first noticed allegedly infringing works on Instagram and then chased down the defendant retailers who do business both online and through brick and mortar stores. Plaintiff filed the case in January and things are just getting underway. Here are some of the interesting issues that could arise in the litigation:
- Registration timing issues – the photo was taken in 1973 but not registered in the U.S. until 2017.
- Whether the photo was ever published before 1989 without a copyright notice. That could have placed it in the public domain.
- Fair use – Are these uses transformative? Have they affected the market for the original work?
The Duffy Archive is certainly trying to keep defendants under pressure. Plaintiff seeks injunctive relief, maximum damages, costs and attorneys fees and anything else the court will give it.
Duffy Archive Limited v. The Found, Inc. et al., No. 21-cv-00181 (N.D.Ill., filed January 12, 2021)
About the author: Evan Brown is a technology and intellectual property attorney in Chicago. This post originally appeared on evan.law.