• Megan Parent

The Sacred Sandwich Shot

Last week in court, the feud between Tocci, a construction company, and Fotohaus LLC, a photography firm, began over the use of a copyrighted image of a sandwich. Yep, you heard that right.

So how did this all come about? Well, Tocci Building Corporation (“Tocci”), a construction firm headquartered in Massachusetts, used a picture of two hands holding a bun filled with meat and lettuce, on their website to promote bringing your lunch to work. Tocci is unique, in that it believes in and promotes the health and financial benefits of bringing a packed lunch to work -- hence the use of sandwich on their company website. Seems harmless, right?

Fotohaus LLC (“Fotohaus”), a photography firm out of Florida, did not think so. On August 23, 2018, Fotohaus filed a complaint against Tocci, alleging ownership of the sandwich photo and copyright infringement, for Tocci using it without its permission. Fotohaus alleges that the photo was taken on August 9, 2015, in Berlin. According to Fotohaus, the very next month they uploaded the sandwich to the photo-sharing website Flikr ® and, additionally, registered the image with the U.S. Copyright Office. Fotohaus, furthermore alleges that,

Tocci began displaying the sandwich on its website in June 2017. As of right now, though, it does not appear on Tocci’s website.

On September 25, 2018, Tocci filed a motion to dismiss Fotohaus’ claim, on the grounds that Fotohaus does not own the sandwich photo, and therefore lacks standing to bring such an action. Tocci alleges that the actual owner of the photograph is Daniel Foster.

Does Tocci have a valid claim? According to Copyright Law, the owner of a work of art is the original creator. Now, in certain circumstances, a copyright can be licensed or sold to another party, thereby granting the transferee the same rights as the original creator would have had. Here, Tocci argues that Fotohaus shows no evidence that the Daniel Foster licensed or sold the photo to Fotohaus. It will be interesting to see, in its reply, if Fotohaus does produced this evidence. It would seem like a pretty clear cut case, then, because Tocci was not licensed by either Daniel Foster or Fotohaus to use the photo on their website, nor did Tocci give any kind of credit as to the actual owner of the photo.

This case is a perfect example of what kind of things to look out for as a copyright owner, and what things to be cautious of when branding your company and creating marketing material. Respecting a creator’s rights in their art is essential because it gives creators incentive to continue to create. You should be recognized for your work of art! It’s also important to get a copyright owner’s permission BEFORE you use it. Most likely you will have to pay to use the work -- the amount will depend on the work of art and nature of use.

As you can see, failure to give the proper credit where credit is due can have detrimental impacts. You’ll probably end up getting sued and having to pay damages to the copyright owner. However, copyright infringement most negatively impacts the actual owner -- the creator. When people steal another’s work without getting the appropriate permission and licenses, the creator not only loses money but his/her works of art also loses value. Where would the incentive in creating be then?

We’ll keep an eye out for how the court rules in the Fotohaus v. Tocci action. In the meantime, if you have any questions related to copyrights or other intellectual property, please contact us here!

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