A Catfight Over Copyright

Advertising Law

A photographer has filed suit against Clorox and its ad company for copyright infringement, arguing that the defendants made use of her photos far beyond what the parties agreed in the contract.

According to Jill Greenberg’s complaint, the agreement provided that she would create a series of portraits of cats on glass for limited use and duration, with an explicit prohibition on the use of any of the photos in any video format such as online videos, broadcast and/or industrial videos.

For her efforts, Greenberg—a visual artist known for her work with animals—was paid $115,450 and $85,000 for expenses.

Although her pictures were used as expected as part of Clorox’s campaign for its Fresh Step cat litter, the defendants went beyond the terms of the contract by using the images in derivative promotional and advertising works, Greenberg told the court. For example, Clorox permitted members of the Fresh Step’s Paw Points loyalty program to download the photos and use them as mobile wallpaper. Clorox also displayed the photographs as works of art in pop-up galleries in Los Angeles and New York City.

As the New York City gallery was just one block from Greenberg’s art gallery of fine art animal portraits, she added that the placement fostered market confusion.

In addition to these uses, Clorox also permitted a segment on The Ellen DeGeneres Show where a producer was allowed to be a “cat” inside the glass exhibit at one of the pop-up galleries, it live-streamed tours of the galleries and it compensated influencer posts that made use of the images in the galleries, all of which violated Greenberg’s copyright in the photographs.

The suit seeks injunctive relief enjoining the defendants from their continued use of the images, as well as monetary damages (statutory and punitive) for the alleged copyright infringement, contributory infringement and breach of contract.

To read the complaint in Greenberg v. Dentsu McGarry Bowen LLC, click here.

Why it matters: The allegations in Greenberg’s complaint explore the boundaries of how far an advertiser can go when making use of copyrighted work for publicity purposes.