Cleva Media, the independent photo agency, will have its day in a French court this week as it is sues the former All Black rugby player Byron Kelleher and his clothing brand, BK9, for serious copyright infringement and non-payment of more than 35,000 euros in fees plus damages and other compensation.
It has already been a bad week for Kelleher, who is based in France where he plays for Stade Toulouse. Last Friday, Kelleher (pictured left, in an image from Cleva Media) was arrested in the early hours on charges of drink driving, leaving the scene of an accident and for allegedly assaulting two members of the public. During the fracas, Kelleher suffered a suspected fractured cheekbone and injured his right shoulder in a fall.
Cleva Media, whose directors include SJA member Eoin Mundow, say they were were forced to take legal action against Kelleher in order to recover their fees and images after BK9 used more than 100 of their pictures on its website and in marketing material.
In a Toulouse court on Thursday, Cleva Media will allege that BK9 failed to honour a contract between the parties, when the photographic agency was hired as Kelleher’s official photographer.
Under the terms of the agreement, Cleva was to provide exclusive photographic content for a limited edition book and to promote the BK9 clothing brand (of which Kelleher is the majority shareholder).
Cleva claims that the book was supposed to be sponsored by Adidas. The pictures in the book were to document Byron Kelleherâ€™s life in Toulouse, follow him playing for Stade, attending award ceremonies and promotional events and capture him in other, private moments, such as when he was being tattooed.
Mundow says that Kelleher even let him use his own car in order to photograph a series of matches at the beginning of last season.
The agreement was signed in the summer of 2008 by Mundow and Joe Hutley, Kelleher’s co-shareholder in BK9 and business manager (pictured with Kelleher, right. Photograph by Cleva Media).
Kelleher, 32, was present at the contract-signing meeting, and the arrangement was endorsed by the player’s club, who wrote to Mundow to acknowledge that he would be working as the New Zealander’s official photographer.
But after Kelleher split from his business manager, the only response Cleva Media received to its demands for payments was a letter from the All Black’s lawyer, claiming money from the photographer for the privilege of having photographed the player.
“Mr Kelleher never had knowledge of the contract signed by Joe Hutley concerning photographic service and therefore there can be no question of paying any invoice from Cleva Ltd,” his lawyers wrote.
“In fact Mr Kelleher usually invoices himself for the right to use his image, he would never even consider paying someone 8,750 euros a month for taking some photos.”
A preliminary hearing took place at the Tribunal De Grande Instance de Toulouse in July, and a judge at the court will hear final pleadings on Thursday this week, with a judgement likely to be delivered in October.
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