Vanity Fair has been slapped with a $1 million copyright infringement lawsuit over an iconic photo of Marilyn Monroe. According to historical photo collector Aric Hendrix’s lawsuit, which was filed last week in the U.S. District Court for the Central District of California, the Conde Nast-owned publication used a photo of the late model/actress that was taken during then-President, John F. Kennedy’s 45th birthday celebration at Madison Square Garden.
Per Hendrix, the copyright-protected image was used by Vanity Fair, “one of the largest and well-respected publishers in the United States and throughout the world,” inside a special Marilyn-themed collector’s edition of the magazine in July 2016 – of which he claims Vanity Fair “sold hundreds of thousands of copies” – “without [his] permission or consent” and “without giving proper credit” for the photo.
As such, Hendrix alleges that the magazine has infringed his rights as the copyright holder to exclusively make, sell, and display products bearing the image.
The matter becomes a bit complicated, as Vanity Fair did, in fact, license the rights to the photo – just not from Hendrix. According to Hendrix’s complaint, Vanity Fair licensed the rights to the photo from and gave credit to Photofest Inc., a New York corporation “in the business of licensing photographs to magazines.” Neither Hendrix, nor any of the photos that he owns, presumably have a connection with Photofest.
As a result of such improper crediting, Hendrix alleges that he “has suffered direct injuries including a loss of respect with clients and the public because as a result of the false credits, people do not believe that [he] is the copyright owner of the photo.”
How plausible is it for licensing to go awry? This is actually becoming something of a common occurrence as of late. For instance, just last month Kendall and Kylie Jenner’s brand was sued for copyright infringement over their allegedly unauthorized use of photos of late rapper Tupac Shakur. Michael Miller, the photographer and copyright holder of the photos at issue filed suit, claiming that the famous sisters used the photos without his authorization.
A spokesman for the Kendall + Kylie brand argued that the photos were, in fact, licensed and so, the t-shirts do “not infringe or violate anyone’s rights.”
Also, in June, photographer Danny Clinch filed a similar lawsuit against Forever 21 and Urban Outfitters, alleging that they made use of photos – again of Tupac – that he shot for Rolling Stone magazine in 1993 and 1996, without permission to do so. In that case, Clinch acknowledged that the images were, in fact, properly licensed.
The problem there: While the t-shirts at issue were produced by Bioworld, licensed through Planet Productions LLC and Amaru/AWA Merchandising Inc., and then sold by Forever 21 and Urban Outfitters, Clinch (who holds exclusive rights in the copyright-protected photos) claimed that he never authorized Planet Productions LLC or Amaru/AWA Merchandising Inc. to act on his behalf.
As for what really went down in terms of the Vanity Fair photo, we will have to wait and see.
The case is Aric Hendrix v. Vanity Fair, Inc et al, 2:17-cv-05759 (C.D.Cal).