Photographer sues ad agency for going beyond scope of photo contract

Photographer Jill Greenberg, who is known for her animal portraits and fine art work, is suing ad agency McGarryBowen and Clorox Co. for copyright infringement.

Greenberg alleges that the way the agency used the images she shot for them went beyond the limited usage and duration specified in her licensing agreement.

She was contracted by McGarryBowen in late 2017 to create a series of five portraits of cats on glass, playing off of a popular social-media meme. The photos were meant to promote Fresh Step kitty litter, a brand owned by Clorox. Greenberg was paid $115,450 including more than $85,000 for expenses for the shoot.

She gave her clients a two-year license for the images which allows for a wide range of uses in print, out of home, product packaging, and retail display, but excludes use of the images in video.

The photographer claims that the photos she shot were used by the ad agency as downloadable wallpaper, featured in pop-up galleries, and in a video made during gallery openings. They even appeared in a segment on "The Ellen Degeneres Show."

"In my 27 or 28 years of shooting advertising images, it never crossed my mind that my kitty litter ads would be put up on the wall of a Chelsea gallery, and referred to as fine art photography," Greenberg told Ad Age.

Despite discussions and a cease-and-desist letter sent in November, Greenberg and her attorney say the defendants refused to take down the infringing uses.

Lawyer Michael Siem of Goldberg Segalla in New York City, who is now representing Greenberg, told PDN Pulse that this is more than a breach of contract case. "There’s a federal copyright claim outside the scope of the contract."

They are seeking licensing fees for all use of Greenberg’s images, as well as statutory and punitive damages.

McGarryBowen has not responded to Greenberg's lawsuit.