A Montgomery County photographer claims that 45 soft pretzel shops in the Eastern
Pennsylvania region used his copyrighted material as part of a marketing campaign led by the parent company, according to a suit filed at the U.S. District Court for the Eastern District of Pennsylvania.
Peter Wodarczyk, of Huntingdon Valley, Pa., seeks $30,000 from each alleged violator, all franchises of the Philly Pretzel Factory, which initiated the campaign in 2011. Wodarczyk has already been awarded $40,000 from a federal judge who found that Philly Pretzel Factory owner Ted Fine violated the plaintiff's copyright.
According to the Sept. 30, 2013 opinion authored by District Judge Michael Baylson, Fine set up a meeting with Wodarczyk to help create images for the pretzel chain's "Be the Hero" campaign. The idea was to have a photo similar to the classic shot of Clark Kent ripping open his shirt to reveal the Superman emblem.
Wodarczyk met with Fine on Aug. 4, 2011, and used his digital camera to shoot 145 photos of Fine dressed in a suit and tie, tearing his shirt to reveal a t-shirt with the Philly Pretzel Factory logo. Fine downloaded the images to his computer and touched-up and added text to one of the photos that would be used in the September campaign, plastered on bus stops, signs, newspapers, magazines and at least 52 billboards.
According to the opinion, Fine and Wodarczyk did not discuss ownership or licenses for the photos or enter into a written agreement prior to the shoot. When Wodarczyk asked about compensation after the pictures were taken, Fine said they agreed to do the shoot for free in exchange for his company's reference for Wodarczyk's services.
The plaintiff protested and left the Philly Pretzel Factory's offices. After submitting an invoice for $10,000, Wodarczyk filed for the copyright on Sept. 16, 2011. He sued for infringement against Fine and the Philly Pretzel Factory in July 2012, but his motion to later add the separate franchises was denied.