Who Knew this was Copyright Infringement?
Today on CBS Sunday Morning, they did a piece on rock-n-roll photographer Bob Gruen, who has apparently photographed every significant mainstream musical artist in the last half century. What, you've never heard of him? Neither had I. But you're undoubtedly familiar with his work.
During his tenure as John Lennon's personal photographer, Gruen shot this iconic 1974 picture of Lennon atop a NYC apartment building. Sure, it's a cool shot, but that's not what caught my attention. During the interview, Gruen revealed that this photo has been used (reproduced and sold) all these years without his permission—i.e. that it's copyright infringement! Gruen went on to say that he's more or less flattered that people have been ripping off his work this time.
So the infringers are apparently off the hook for the stiff penalties: statutory damages of up to $150,000 per act for willful infringement, plus the amount of actual damages (disgorgement of all profits), and attorneys' fees.
I suppose it's possible that the rights to the photo don't even belong to Gruen himself; if he was indeed Lennon's personal photographer at the time, then the photo could be a "work for hire," which would mean that Lennon (or his estate) actually owns the rights. (I'd like to assume that if that were the case, Gruen would've said that in the interview, because not saying it fairly implies the contrary.)
Can Gruen sue for copyright infringement now, after all these years? That's a difficult question. The statute of limitations for copyright infringement is only 3 years (from the date of discovery; 5 years for criminal liability), however, as the Second Circuit Court of Appeals held in Stone v. Williams, 970 F.2d 1043, 1049 (1992):
Each act of infringement is a distinct harm giving rise to an independent claim for relief.
But even though a new limitation period begins to run each time someone rips off Gruen's photo, the fact that he's allowed the photo to be ripped off for all these years implies his consent. Any defendant would logically argue that Gruen has waived any claims for infringement, and should be estopped from bring suit.