Los Angeles-based photographer Anais Ganouna and her company, Frank & Anais, filed a lawsuit against The Colors You Like (TCYL) and Cincoro Spirits Group (doing business as Cincoro) for copyright infringement, fraud, civil conspiracy to commit fraud, and unfair competition. Ganouna claims the defendants knowingly and unlawfully exploited her creative work in connection with Cincoro’s highly anticipated launch of its premium tequila brand in 2019. Cincoro is owned by Michael Jordan and four other NBA owners.
Ganouna is a professional photographer and was commissioned to do a photoshoot for the defendants of the agave fields and plants in Mexico, the tequila production process, and the tequila bottles and barrels, as well as other instrumentalities, used for Cincoro’s tequila. Prior to contacting Ganouna, TCYL had used a staff photographer for the project but was dissatisfied with the quality of the images produced. According to Ganouna, her photoshoot was a “major success” and the defendants expressed their excitement at the prospect of using the images in their advertising campaign.
For her time, Ganouna was paid a discounted day rate of $1,000 with the understanding that licensing/usage rights would be negotiated at a later point. Indeed, Ganouna claims that such rights are typically negotiated separately from a photographer’s day rate, which merely serves to compensate the photographer for its time. When Ganouna later reached out to discuss usage of her photographs, a representative for TCYL responded that it had not been made clear that licensing the photographs would cost additional money. This same representative also represented that TCYL would be hiring another photographer to do reshoots and that none of Ganouna’s photographs would be used. However, Ganouna alleges defendants never engaged another photographer for this purpose and that no reshoots ever took place.
In September 2019, Cincoro officially launched. At this point, despite defendants’ representations, Ganouna discovered that Cincoro had indeed used a number of her images on its website, social media accounts, including Instagram, Facebook, and Twitter, as well as in paid advertising (i.e., sponsored advertisements) and by third-party vendors. As such, Ganouna, through counsel, sent a letter to defendants demanding compensation for their purported use of her photographs and requesting they cease using the same until after a resolution had been reached.
In response to Ganouna’s letter, defendants claimed that TCYL had meta data proving that every photograph used was pulled from a video shot by TCYL and not from Ganouna’s photographs. Nonetheless, Ganouna argues that even if this is the case, the photographs selected from the videos taken concurrently with her photoshoot appear to be identical to her photographs or “extremely close derivatives thereof.” Indeed, Ganouna claims to have dressed the sets, staged the shots, and placed or directed the subjects of the shots. Moreover, Ganouna claims that video was not shot to accompany every scene Ganouna shot. To date, Ganouna’s alleged photographs remain on Cincoro’s website and social media pages.
Ganouna’ first claim for relief, copyright infringement under 17 U.S.C. § 101 et seq., requires the use of works protected by copyright law without permission for such usage, thereby infringing the copyright holder’s exclusive rights. Under copyright law, authors of original works of authorship that are fixed in a tangible medium possess numerous rights, including reproduction, preparation of derivative works, distribution, public performance, and public display. For economic rights to a copyrighted work to be transferred, such as through a licensing agreement, the transfer must be in writing and signed by the copyright holder. Notably, such transfer does not require payment or any consideration in exchange for the granting of a license. That being said, copyright holders often do require payment or otherwise place restrictions or obligations on the licensee. Thus, in this case, the court will determine whether by accepting a $1,000 fee, Ganouna had licensed the rights to her photographs. In any event, though defendants have not responded to Ganouna’s lawsuit, defendants may maintain their position that none of Ganouna’s photographs was used, in which case no license would be required.