Photographer Awarded $1.2 Million for misuse of his pigeon photo

Who’d have thought that taking a photo of a pigeon could be so profitable? In this case, it finally was when a jury awarded for years of damages to the photographer behind the shot.

On Wednesday, a federal jury in Los Angeles, California ruled in favor of photographer Dennis Fugnetti to the tune of $1.2 million dollars against a company called Bird B Gone.

Said company had apparently used his fairly mundane photo of a pigeon for a decade to sell its bird-repellant products.

Fugnetti had originally filed his lawsuit for copyright infringement in 2019 against Bird B Gone after he noticed that the company, which sells spikes for keeping birds off objects and structures, was still using and even trademarking the pigeon photo he had taken without compensating him.

Based on court filing records from Law360, the photographer claimed that the bird repellant company continued to promote its products with a photo of a pigeon in mid-flight that he had taken in 1999.

This same company had originally commissioned Fugnetti’s tiny two-man business, MIAD Photography and Design to photograph a pigeon and then develop advertising designs from the image.

However, over a decade later in 2003, Bird B Gone stopped using external advertising contractors and decided to do its own in-house work.

With this, its working relationship with Fugnetti and his little business ended, along with their permission to use visuals he’d developed.

Despite this, according to Fugnetti’s lawyers, Bird B Gone again started using his flying pigeon photo on its product packages in 2005. It later even applied for a trademark for the photo without the photographer’s consent.

He only found out about this last detail when the company itself called Fugnetti in 2017 to ask when he’d taken the photo so that they could file their trademark registration.

It was two years after this that Fugnetti decided to file a lawsuit against Bird B Gone for using his image without compensation or permission. Why the photographer waited two whole years after being notified of their impending trademark application is unclear.

Either way, as soon as Fugnetti’s lawyers sent the company notice of his lawsuit, Bird B Gone promptly destroyed all of its packaging that already featured the pigeon.

The opposing team of lawyers working for the bird company claimed that Fugnetti had given their client (Bird B Gone) an implied license to use his image. What exactly this means is unclear.

Unfortunately, Fugnetti himself won’t be able to enjoy his victory, because he unexpectedly died in 2019 shortly after filing his lawsuit. However, his daughter continued the legal battle and can now presumably enjoy a piece of her father’s legacy through these curiously indirect means.

In a statement issued by Fugnetti’s lawyers working on his daughter’s behalf, they claimed that she “became visibly emotional, moving to tears once it became clear that [she] had prevailed.”

The money isn’t in the bank quite yet though. The lawyer representing Bird B Gone, John van Loben Sels, explained to Law360 that his firm, Thoits Law, and its client will appeal the court ruling.

According to van Loben Sels, there is no evidence supporting the damage award’s merit and he hopes that the court decides to set it aside.

You’d think that the company would have at some point thought to just find a cheap alternative pigeon photo online, and save itself years of financial pain.

If Fugnetti’s daughter does indeed obtain her father’s copyright damages, it will definitely be one of the more roundabout ways in which an otherwise obscure photo of a common bird goes on to benefit the next generations of a photographer’s family.

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