Spencer Gifts Sued over Willie Nelson Shirt

A photograph of country music icon Willie Nelson smiling and flipping the bird is at the center of a copyright infringement lawsuit filed in Sacramento.

Photographer Sean Moorman of Little Rock, Ark., filed the case against Spencer Gifts LLC after he discovered that the gift store carries black T-shirts featuring his photo of Nelson with his middle finger raised, his complaint said. The retail chain, based near Atlantic City, N.J., has local stores at Arden Fair mall in Sacramento, Sunrise Mall in Citrus Heights and Westfield Galleria at Roseville.

The “Willie Nelson Middle Finger Black T” can be ordered at Spencer Gifts’ Web site for $17.99.  “The Red Headed Stranger is no stranger to controversy,” the site states. The infringing and piratical T-shirt bears an image identical to plaintiff’s copyrighted work,” the suit alleges.  

According to the lawsuit, Moorman shot the photo after being invited on Nelson’s tour bus on July 26, 2002. The photo title, “Willie Nelson Sending Jim Marshall Regards,” refers to another famous photographic one-digit salute.

Marshall, also a photographer, is the most famous client of Sacramento lawyer Andy Stroud, who has created a niche practice protecting images that document musicians of the 1960s. The Internet makes images accessible worldwide, to view or copy, which can make it difficult for photographers to keep control of their images. 

Stroud represented Marshall when his well-known shot of Johnny Cash flipping the bird at San Quentin Prison showed up on T-shirts sold by Urban Outfitters. Stroud brought suit for copyright infringement and got the shirts pulled off the market. 

“We’re beginning to specialize in bird-flipping photographs,” Stroud joked. 

Stroud’s work for Marshall has brought referrals to other photographers with similar legal battles over their work; Moorman is the latest.

He has been granted access to photograph such musical acts as Slayer, Emmylou Harris, Allison Krauss, Jane’s Addiction, Linkin Park and Ringo Starr, according to the lawsuit. He was also the official campaign photographer for U.S. Sen. Tim Hutchinson, an Arkansas Republican.

In cases like this, Stroud said, “Everybody is making money except for the artists who took the picture in the first place.”

Morman was issued a copyright for the photo on March 2, the lawsuit said, and he’s never conveyed any interest in, or right or title to, the copyrighted work to anyone. He declined to comment for this story.

Moorman is seeking the destruction of all goods infringing on his copyright, damages and the profits Spencer Gifts has accrued from sales of the T-shirts.

Stroud’s office has had preliminary discussions with Spencer.

Apparently, they bought the shirt from another company, who apparently led them to believe they had the license to the photo,” Stroud said.

Kevin Mahoney, general counsel for Spencer Gifts, said he does not comment on pending litigation and that Spencer Gifts had not been served with the complaint.

Jeff Galvin, a Sacramento lawyer familiar with copyright-infringement law, said whoever is the creator of a piece of work — the artist who makes an image or the author who writes a story — holds the copyright. The subject of a photo, in this case Nelson, has the right of publicity, or the right to partake in any commercial exploitation of the image.

Generally, the person who holds a copyright would have a strong infringement claim, Galvin said, though in this case it’s not clear how the image was transferred in the first place.

“Just because you have access to an image on a Web site or by whatever means doesn’t mean you have the right to commercially exploit it by duplicating it,” he said.

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