Island photographer sues Walmart over shark photo

gmartin@islandpacket.comOctober 19, 2011 

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Having survived a life-threatening shark attack off the coast of California, longtime marine life photographer LeRoy French thought he knew about the hazards of his profession.

But now the Hilton Head resident is struggling against a different kind of intimidating opponent -- corporate retail giant Walmart -- over what he claims is its unauthorized use of his photo of a great white shark.

French, 73, has been a professional photographer for more than 50 years; this is the first time he's filed a lawsuit.

"I'm not a 'suit person,' and I really didn't expect this to happen in my life," French said. "But I feel like I'm truly being taken advantage of."

French contends his photo is on a swimsuit made by swimwear company Ocean Pacific and sold by Walmart, the company's sole distributor. Both Walmart and Iconix Brand Group, which owns Ocean Pacific, face accusations of copyright infringement in federal court in South Carolina.

The trial date and the amount of damages French is seeking have not yet been determined.

French said he first learned of the swimsuit this summer, when a friend called him and said he'd just seen his photo at a Walmart in Maryland.

"I headed right over to the Walmart on the north end and saw it right away," said French. "I just remember thinking, 'Oh my God, that's my picture.' "

French dismissed the possibility that the image on the swimsuit is just very similar to his photo.

"There are two or three distinguishing marks, like the pilot fish under the pectoral fin, that are just impossible to duplicate," French said.

Greg Rossiter, a Walmart spokesman, said, "We respect the intellectual property rights of others and are reviewing the concerns."

French began scuba diving in an apartment swimming pool in 1955. Since then, his underwater images have appeared in several films and publications, including National Geographic and Life magazines.

But this alleged use of his work is particularly upsetting, he said, because of the money at stake.

"To tell you the truth, I wouldn't have minded it so much if they weren't making money off my work," French said.

French and his attorney, Ellis Lesemann, believe the photo may have been originally appropriated by a designer searching the Internet for images of sharks.

Walmart has been involved in copyright infringement cases before.

Last summer, Ohio-based BCP Imports sued for selling bracelets similar to its line of Silly Bandz elastic jewelry for children. That case is pending.

French's case is in the earliest stages of the legal process, according to Lesemann, who filed the suit Oct. 7. He expects a protracted legal battle but is optimistic about French's chances.

"Any time you take on a corporation with the essentially unlimited resources of Walmart, it's always a challenge for the plaintiff," Lesemann said. "But in this case, the applicable federal laws are clear, and at this point, we feel really good about it."

Follow reporter Grant Martin at Twitter.com/LowCoBiz.

Related content: Swimming with sharks: After suffering a brutal attack, photographer returns to the waters, October 14, 2007

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