‘Deadliest Warrior’ Host Has Case Over Gun Photo

     LOS ANGELES (CN) – A gun manufacturer that advertised with photographs taken by the host of TV’s “Deadliest Warrior” must face copyright infringement claims, a federal judge ruled.
     Richard Machowicz, a former Navy seal who hosts of “Future Weapons,” “Most Lethal” and several other television shows about firearms, sued alongside his company Mindlab LLC in 2011.
     The complaint alleged that gun manufacturer LWRC International infringed Machowicz’s copyright by using a photograph of him holding one of its guns in a print advertising campaign without his permission.
     Machowicz said he sent LWRC the photo in appreciation for allowing him to use one of the company’s rifles on a television show.
     Hoping to use the photo in the LWRC advertising, the company’s executive vice president, Darren Mellors, said he sought permission from Machowicz but never received a response to the requests he sent via email, telephone and in person at a meeting.
     LWRC placed the photo on its website and in advertising in Guns and Ammo magazine. Mellors claimed that Machowicz’s failure to respond to his repeated requests meant the company was free to use it without restriction. He also challenged Machowicz’s claim that the photo is copyrighted since the person who took the picture – Machowicz’s neighbor, J. Alan Barnes – was not employed by Mindlab at the time.
     But U.S. District Judge Christina Snyder ruled last week that there is no doubt the photograph is copyrighted, and that Mindlab and Barnes are the owners of that copyright.
     “Mindlab has adequately demonstrated its ownership of the subject work as a work for hire,” she wrote. “At the outset, the court notes that there is no dispute between the two potential owners of the copyright – Barnes and Mindlab – in this case.”
     “In support of its ownership of the photo as a work for hire, plaintiff offers a written ‘Work for Hire Photo Shoot Agreement,’ signed by both Barnes and Machowicz (on behalf of Mindlab), which recites that Barnes is being commissioned by Mindlab ‘to photograph Richard ‘Mack’ Machowicz for photos intended for primary use in promoting Machowicz,'” she added (parentheses in original). “These photos, including the one at issue here, would thus constitute a ‘collective work,’ one of the specifically enumerated categories under [copyright law]. One of these promotional purposes could clearly be for use in the advertisement in question …. In opposition, defendant offers no evidence that this photo was not for use in a collection of photos intended for promoting Machowicz, as described in the work for hire agreement. Accordingly, Mindlab is considered the author of the subject work and is a proper party for bringing this suit. A greater showing is not required.”
     While Machowicz sufficiently proved the existence of a registered copyright, Snyder found “disputed issues of material fact” over whether LWRC had permission to use the photograph or infringed the copyright at all.
     “For one, the parties dispute whether they in fact entered into an oral agreement that granted defendant a non-exclusive license to use the photograph in question,” she wrote. “Without making credibility determinations, the court cannot resolve this dispute in either party’s favor on this motion. Moreover, on all three factors of the test for the creation of an implied non-exclusive license, disputed issues of material fact preclude a grant of summary judgment in plaintiff’s favor.”
     She added that “both parties point to conflicting evidence in the record as to whether plaintiff granted defendant an implied license to use the photograph in question in exchange for one of defendant’s firearms.”
     “First, it is disputed whether or when defendant requested that Machowicz take a photograph of himself with defendant’s firearm,” the ruling states. “Plaintiff contends that such a discussion never took place, yet defendant offers Mellor’s testimony to the contrary, in addition to noting Machowicz’s email sending the picture in question, which states that he ‘hope[s] these [pictures] work for you.’ Second, the parties do not dispute that plaintiff emailed (or delivered) the subject work to defendant. Whether this work was created specifically for defendant’s use is again disputed, but because the picture depicted Machowicz holding LWRCI’s rifle, a jury could infer based on the parties’ testimony that this picture was in fact of the type allegedly requested by defendant. Third, disputed issues of material fact exist as to whether the ‘totality’ of plaintiff’s conduct indicated an intent to grant defendant permission to use the work for promotional purposes. Because of the conflicting testimony and inferences therefrom in the record, this determination depends, in part, on credibility determinations that are reserved for the factfinder at trial.”
     “Accordingly, the court denies plaintiff’s motion for summary judgment as to the issue of infringement; plaintiff may have granted defendant either an oral or implied non-exclusive license to use the subject work,” Snyder concluded.

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