By now, every sports fan has heard about the hoax apparently perpetrated against Notre Dame linebacker Mantei T’eo. And though most of the discussion has revolved around whether T’eo can credibly claim to be a victim, a few people have begun discussing whether the perpetrator of the hoax bears legal liability for what he’s done. Most of these discussions talk about the difficulty of holding the perpetrator liable.
Now, I realize that for a man with a hammer, everything looks like a nail. Nevertheless, what about a copyright action against the perpetrator for taking the photos from someone else? Granted, it’s not the most traditional use of copyright, but it doesn’t seem so far-fetched to me. Maybe there wouldn’t be a lot of provable damages, but willful statutory damages (up to $150,000 per infringement – and I believe the perpetrator used multiple photos) could get large enough to really hurt, especially since the perpetrator isn’t a wealthy man.
Does Diane O’Meara own the copyrights in the photos? Doesn’t copyright rest with the person who took them, not the person featured in them? Might a different approach would be some right of publicity tort?
Hmmm. Wouldn’t know if she does own the copyright. I don’t know enough about the photos used. It’s entirely possible that someone other than O’Meara owns copyright in the works. It’s also possible she took some of the photos herself or was a joint author in some cases. I just don’t know. Perhaps more problematic, it’s highly unlikely the works are registered, so that would make statutory damages unlikely, unless the timing of any subsequent registration for one of the photos fortuitously fits section 412(2). I hadn’t thought of that in my original post. Still, someone can sue in copyright, although the damages available might not make it worth the suit.
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