'The Play' Photographer Sues For Copyright Infringement

Photo: A photo of 'The Play' from the 1982 Big Game is now the subject of a copyright lawsuit, as the original photographer is alleging that a website sold unauthorized prints of the photo.
Michael Simon/File
A photo of 'The Play' from the 1982 Big Game is now the subject of a copyright lawsuit, as the original photographer is alleging that a website sold unauthorized prints of the photo.

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Four seconds of clock time, five laterals and 55 yards after the biggest play in Cal football history, Robert Stinnett, a photographer assigned to the Nov. 20, 1982 Big Game by the Oakland Tribune, snapped Cal's Kevin Moen as he lifted the ball triumphantly over his head in an iconic and enduring portrait of victory.

This photo is now the principal subject of a copyright lawsuit filed on Dec. 13, 2010 between Stinnett and Sports Gallery Authenticated, a Palo Alto-based sports memorabilia company that has allegedly sold unauthorized prints of Stinnett's photo - known simply as "The Play" - both online and in its four locations throughout the Bay Area.

Stinnett is charging Sports Gallery Authenticated with copyright infringement, seeking damages for the wrongful use of the photo and the injury to Stinnett's reputation due to the "knock-off" quality of the reproduction.

Stinnett has maintained exclusive rights to the photo - which appeared in a 1983 issue of Sports Illustrated and in an ad campaign for the Plymouth automobile company - since retiring from the Oakland Tribune in September 1986. He registered the photo with the U.S. Copyright Office on May 17, 2010.

In June 2010, Stinnett discovered that Sports Gallery Authenticated was selling what he said appeared to be print reproductions - which the defense admitted in official court documents were "substantially similar" to Stinnett's original photograph - for $159 as one of the top 50 best-selling products on the company's website.

"I was outraged because (Sports Gallery Authenticated had) been selling the photo since Dec. 2009 with a terrible copy that they made," Stinnett said. "They cropped it, cut out a lot of the Stanford band and were just unprofessional."

However, in court documents, the company said the photo the plaintiffs refer to as "The Play" is an event rather than a "thing" and that, while similar, the custom frames the company offers are only related to Stinnett's photo by their association with the event.

After Stinnett's son discovered the website, Stinnett's lawyer, Matthew Webb of the Law Offices of Matthew J. Webb, sent a letter to the company's owner W. Patrick Kelley Sr. on July 15, 2010 calling for a cease and desist action regarding sales of the photo while offering the possibility of a licensing agreement between the two parties.

Kelley did not respond to multiple requests for comment.

In his Jan. 14 response to Stinnett's claims, Kelley, who is representing himself, maintained that he "did not respond to the letter because he never received the letter," but nevertheless removed content referencing "The Play" from the company's website.

However, Webb and Stinnett were able to purchase a copy of the photo from each of the company's four locations between August and November, with receipts to prove it. Shortly thereafter, Stinnett filed a claim with the California Northern District Federal Court.

Webb maintains that much of the damage done by the infringement is actually to Stinnett's reputation as a photographer.

"Once we purchased the prints, it's clear that the photo they used is a reproduction of a reproduction," Webb said. "The photos themselves are muddy and not clear. This will further impact his ability to sell prints."

Jay Dougherty, a law professor at Loyola Law School Los Angeles who specializes in entertainment copyrights, explained that entities willfully engaging in copyright infringement - as Stinnett alleges of the company - may suffer enhanced charges and damages as a result of that intention.

"A lot of photographers are getting ripped off, and I want to make an issue of it," Stinnett said. "I want to do this on behalf of all other news photographers and get it in the law books that you can't do this."

A hearing to determine a trial date is set for March 22.


True Shields is the lead courts reporter. Contact him at [email protected]

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