Photographer targets fudge shop and boating firm in copyright suit
A New Jersey-based photographer has accused multiple businesses and individuals of infringing the copyright in pictures he took more than 20 years ago, one of which shows fudge being made.
Douglas Hunsberger filed his complaint (pdf) at the US District Court for the District of New Jersey on Monday, October 22.
The New Jersey-based defendants are listed as The Original Fudge Kitchen, a confectionery manufacturer specialising in fudge, candy, and salt water taffy, and Starlight Fleet, a boating and sight-seeing business.
An unknown publisher of tourist publications is also listed as a defendant, in addition to the owners of Fudge Kitchen and Starlight, and a number of John Does and unidentified companies affiliated with the defendant businesses.
Hunsberger explained that he conducted business as Seaview Color from 1980 to 2003, during which time he created and published marketing brochures, complete with photography, for businesses operating in New Jersey.
In 1996, Fudge Kitchen allegedly asked him to compile a custom marketing brochure for its confectionery business. The brochure included one of Hunsberger’s photos of fudge being made.
While Hunsberger registered the brochure at the US Copyright Office in the same year (VA0000847294) and the registration specifically claimed the photograph, the complaint said that there was no written or oral contract which conveyed Hunsberger’s copyright in the brochure.
Fudge Kitchen was then granted an implied limited licence to distribute a certain number of copies of the brochure at particular intervals, as ordered through Hunsberger, the suit explained.
According to the complaint, Hunsberger had a similar commission from Starlight in 1995, to create a rack card for its boating business.
A similar arrangement was made and Hunsberger registered the resulting work, including his aerial photo of the boat, at the Copyright Office (VA0000733638).
All brochures contained a copyright notice which advised readers that the content, including photographs, was protected by copyright laws, the suit said.
Hunsberger claimed that, between 1990 and 2000, he had a “substantial market share of the marketing brochure publication and associated photography business” in the New Jersey region, but he left the business in 2003.
According to Hunsberger, since 2009, Fudge Kitchen and Starlight have used the copyright-protected photographs in a series of advertising materials, including in at least five publications published by the defendant publisher, without his authorisation.
The defendants all participated in the design and editing of the advertisements, including the unlawful incorporation of Hunsberger’s photographs, the complaint said.
Hunsberger said that, despite being “duly demanded”, the defendants have failed to compensate him for their unauthorised use of the photographs.
The photographer has asked the court for enhanced statutory damages for each infringement of his copyright-protected works, and an order impounding all materials featuring the images.
Hunsberger also requested that the defendants account for all profits gained as a result of the infringement, and that he be awarded his legal costs and attorneys’ fees.
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