Cartoonish Law Enforcement Supervillain Sheriff Joe Arpaio Allegedly Involved In Copyright Infringement As Well
from the just-another-notch-on-Arpaio's-Belt-of-Corruption-+1 dept
Arizona’s Sheriff Joe Arpaio is infamous for many reasons. He likes to dehumanize his detainees by issuing them pink underwear. His office is pretty much Racial Profiling Central. His armed “citizen posse,” which is tasked with providing backup to sworn officers and (no, really) investigating President Obama’s birth certificate, has included such luminaries as Steven Seagal and Lou Ferrigno. His jail has twice been declared unconstitutional. His office has been sued by the DOJ and at least 11 former employees. He has been called several things, most of them derogatory, but until this point, has never been accused of violating intellectual property laws.
Photographer David Kelly is the latest to bring a lawsuit against the sheriff. His complaint alleges Sheriff Arpaio knowingly took possession of — and resold — infringing prints of his world-famous photo.
Kelly’s lawyer, LaShawn D. Jenkins, apparently feels a federal copyright infringement complaint should also act as a press release/glowing bio of the plaintiff. A claim or two are indeed stated, but in a highly-complimentary manner.
On September 11, 2001, our country was victimized by a terrorist attack that will forever be chronicled in the annals of U.S. and world history. Determined to proceed with our national past times, certain professional sporting events took place as scheduled, including the 2001 Major League Baseball World Series between the Arizona Diamondbacks and the New York Yankees.
The Plaintiff, Mr. Kelly, was then and still is a professional photographer and was then doing business under the name, “Big League Photos.” Mr. Kelly attended the opening game of the 2001 World Series, which took place on October 27, 2001, in Phoenix. Before the ceremonial first pitch, Mr. Kelly was able to photographically capture a vivid and powerful image of the two teams lined up on the baseball diamond – the Diamondbacks extending along the third base line, from third base to home plate, and the Yankees extending along the first base line, from home plate to first base. On the left side of the photograph, between the second and third bases, the Phoenix Fire Department is captured symbolically raising the tattered American flag from the World Trade Center. In the foreground were fans seated just behind home plate and in the background was a massive American flag being held by a group of persons, slightly adjacent to a group of honor guardsmen holding smaller versions of the flag. Entitled, “Remembering September 11th, 2001,” the Plaintiff registered the photograph with the United States Copyright Office.
Here is the photo in question, in all of its badly-captured and badly-scanned glory.
Roughly a year later, Kelly entered into a partnership with Raymond Young who, unbeknownst to Kelly, had an extensive criminal history. Had this been known, perhaps the deal would not have moved forward. But, as Kelly’s attorney points out, the photographer had his eye on the greater good, along with the promise of meaningful residuals.
Plaintiff considered a potential business arrangement with Mr. Young to be a superb way to proliferate on a mass scale the Copyrighted Photographs, to aid in the process of healing a severely wounded nation.
Unfortunately, Kelly soon discovered he would not be able to heal the nation through the power of licensed prints, as Young had already begun distribution of the photo… without Kelly’s involvement.
Mr. Young mass produced a business card that illegally represented that he was the owner of Big League Photos, which was Plaintiff’s company through which Plaintiff executed the Agreement and in association with which he obtained the Federal Copyright. Mr. Young used the phony business cards to deceive several copying companies to mass produce, on information and belief, in excess of 300,000 counterfeit copies of the Copyrighted Posters.
From there, Mr. Young commenced to orchestrate a colossal scheme of distributing, for financial gain and at the Plaintiff’s expense, massive amounts of the counterfeit Copyrighted Posters to over 100 vendors throughout the country – vendors who in turn made millions of dollars exploiting Plaintiff’s intellectual property.
Young also made a “donation” of 3,000 allegedly illicit prints to Sheriff Joe Arpaio, as commemorated by another lossy scan.
Note that the caption — for no apparent reason — reiterates the false claim that Young (referred to here by his first name) is the rightsholder for the World Series photograph.
Kelly sued Young and won a $1.125 million judgment. Now, he’s going after Sheriff Arpaio for his involvement. Kelly made several attempts to notify Arpaio that the 3,000 posters were infringing. He had limited success but did manage to have a short face-to-face conversation with Arpaio himself.
On the afternoon of January 25, 2013, the Plaintiff had a chance meeting with Defendant Arpaio on a downtown Phoenix street. The two men spoke for approximately fifteen (15) minutes. They discussed the fact that Defendant Arpaio had obtained the 3,000 counterfeit Copyrighted Posters from Mr. Young and Defendant Arpaio admitted to having sold the counterfeit Copyrighted Posters. Defendant Arpaio also specifically recalled knowing that the Plaintiff had contacted his office and had spoken with his deputies and his secretary about the criminal activity perpetrated against him by Mr. Young. Having acknowledged those transgressions against the Plaintiff, Defendant Arpaio promised the Plaintiff that he would “make it up to you somehow.”
According to Kelly and his attorney, this admission makes Arpaio himself responsible for the copyright infringement. (The suit also alleges Arpaio took the “donation” from Young in exchange for his office overlooking Young’s criminal activities.)
Maybe Arpaio doesn’t look a gift convict in the background when receiving donated goods. Or maybe it just seemed unlikely that someone would offer infringing merchandise to an officer of the law. Arpaio’s direct conversation with the photographer suggests previous communications with his office about Young and the photo must have made their way back to the sheriff. But it appears Arpaio’s chance to “make it up” to Kelly has passed, and now the court will be looking at forcing the sheriff to make good on his promise.
That being said, the plaintiff’s case seemingly hinges on a verbal conversation that’s backed up by no official documentation. He’s also running up against the statute of limitations. Kelly notes he contacted the Maricopa County Sheriff’s Office about Young back in 2003, which would put any claims hinging on this effort well past the three-year period. Kelly’s conjecture as to the date the 3,000 posters were given to the Sheriff’s Office (“best estimation is that such a meeting occurred in early 2012”) would also put him outside of the three-year limit.
But Kelly also claims the Maricopa County Sheriff’s Office was still selling prints as of late last year, which he maintains keeps these allegations fresh enough to dodge the statute of limitations. Again, there’s no documentation presented, but if his claims survive a challenge by Arpaio and his office, presumably these records will be discoverable. The Sheriff’s Office has been of no help, apparently refusing to provide documentation to Kelly’s public records requests.
It’s a good thing Kelly isn’t representing himself. As weak as this lawsuit appears to be, it’s far better than his personal efforts to right this wrong, which include some very novel interpretations of the law (he refers to Young’s printing of a business card claiming to own the photo as “identity theft”) and claims this is both “black on black crime” and exploitation by whites.
As for the photo with the odd copyright notice attached to the top of the photo of Young’s donation, apparently that’s a Raymond Young specialty.
Kelly has gotten all he can from Raymond Young, which appears to be $0, even though the judgment was for $1.125 million. Young tried, unsuccessfully, to have the judgment discharged during a bankruptcy filing, so there’s little chance this will ever result in meaningful compensation.
Now, Kelly’s going up against a sheriff who’s proven to be largely unconcerned with the letter or spirit of several laws, so it’s unlikely this will result in a payoff for Kelly. Even if it does, it may be limited to the proceeds from sales of the prints, which will be much smaller than the $1 million awarded in his previous case. Then again, the Sheriff’s Office may offer a quick settlement, considering the great number of legal fires it’s battling, and the constant threat of future litigation forever looming on the horizon.