LOS ANGELES – On December 15, 2022, following a three-day trial, a jury in the U.S. District Court for the Central District of California returned a verdict of $1.175 million in damages in favor of a photographer represented by The Law Firm of Higbee & Associates. The defendant, Bird B Gone Inc, is a manufacturer of bird deterrent products, which includes its flagship bird spike product meant to repel birds from landing on buildings or other edifices.
The case involved the photograph of a bird in flight captured at the beach by professional photographer Dennis Fugnetti in 1999. After his business MIAD Photography was contracted by Bird B Gone to create marketing and advertising materials, Fugnetti captured the bird photograph which MIAD incorporated into the design materials delivered to Bird B Gone. Unbeknownst to Fugnetti, Bird B Gone continued to use his photograph of the bird in flight extensively for nearly 15 years after it ended its relationship with MIAD, including on retail product packaging for its bird spike products offered for sale in stores such as Home Depot and Lowe’s.
In 2019, Fugnetti retained the Law Firm of Higbee & Associates to file suit against Bird B Gone for copyright infringement. Bird B Gone responded by filing multiple counterclaims against Fugnetti alleging that Fugnetti had granted Bird B Gone an implied license to use the bird in flight photograph and alleging that Fugnetti had breached his implied license. After Fugnetti passed away in 2020, the Dennis Fugnetti Photography Trust was formed to manage Fugnetti’s photography assets, with Dennis Fugnetti’s daughter acting as trustee.
During the liability phase of the jury trial, the Photography Trust successfully defeated Bird B Gone’s implied license defense and counterclaim for breach. As the liability verdict was read, Fugnetti’s daughter became visibly emotional, moving to tears once it became clear that the Photography Trust had prevailed.
During the damages phase of the trial, the Photography Trust successfully established that it was entitled to recover the profits obtained by Bird B Gone from retail products sold with packaging containing Fugnetti’s photograph, with the jury awarding over $1.17 million in profits.
The plaintiff was represented by The Law Firm of Higbee & Associates. Attorneys Ryan E. Carreon, Naomi M. Sarega, and Mathew K. Higbee were the attorneys of record on the case with Mr. Carreon acting as lead counsel at trial. Lester J. Savit of One LLP, also assisted at trial.
“The jury did an outstanding job assessing the value of the photo and coming up with a damages award,” said Higbee. “This case should be a powerful reminder to not use a photographer’s work without permission.”
“We are thrilled for our clients,” said Sarega, “They hung in there through nearly four years of litigation and were properly compensated for it by the jury.” Sarega expects the monetary award to increase after the plaintiff files its motion for costs.
The case, Dennis Fugnetti v. Bird B Gone, Inc et al., was litigated in the United States District Court – Central District (Los Angeles), case Number 8:19-cv-00847-SK, with the Honorable Magistrate Judge Steve Kim presiding.