Eight years ago, in 2010, Sean R. Heavey took an iconic picture that ended up working out more as a double-edged sword. The photo in question, which Heavey has dubbed “The Mothership”, is a picture of a giant storm cloud formed in the middle of a supercell thunderstorm, rolling across a field in Montana during a sunset. The photo has landed Heavey in commercials with Apple, appeared in publications such as National Geographic and the British Daily Mail, and is even the number one search result on google for ‘supercell’. Now it has landed Heavey in a copyright infringement dispute with Netflix.
While Heavey was watching an episode of Netflix’s popular show “Stranger Things,” he started noticing that some of the imagery used in the show. He explained that he went back and re-watched the scene over and over, freezing the image in order to verify whether or not it was his image used with special effects added to it.
A while later, one of Heavey friends were watching a documentary on Netflix titled “Beyond Stranger Things,” and informed Heavey about surprising similarities between the concept art used in the episode Heavey viewed, and Heavey’s ‘Mothership’ photo. Apparently, in episode 3 of Beyond Stranger Things, titled “Unlikely Allies,” there is a discussion about the show, and a photo labeled as “concept art” was shown. The concept art appeared to be Heavey’s photo, just made bluer, with a foreground and a bolt of lightning added.
In a statement given to The Courier, Heavey said that “Netflix did not get my permission to use the photo, and I do not list the photo with any stock agencies.” This would essentially boil down to the argument that since the photo isn’t listed with any stock agencies, any entity would have to purchase a licensing fee through Heavey directly in order to use the photo, which Netflix has not done.
Heavey, through his lawyer, sent a letter to Netflix informing them that the image is copyrighted, and thought that he would just get an apology and possibly sent a licensing fee. Maybe they would even discontinue use of the photo. Instead, Heavey received a response from Netflix’s lawyers, denying any copyright infringement. Furthermore, Jarin Jackson, a Netflix attorney, claimed that Heavey had no right to any copyright claim for two main reasons: cloud formations cannot be protected by copyright because “[c]opyright law . . . does not protect objects as they appear in nature,” and; Heavey’s ‘Mothership’ photo had been altered so dramatically that Netflix’s photo is virtually a completely different image.
While it is true that you can’t copyright a cloud or any cloud formations, copyrighting a photo of said cloud formation is a completely different issue, and is definitely copyrightable.
DIY Photography reported that Heavey may have had a different outlook on the whole situation if someone took the photo off of the internet, but used it only in-house while working on the show. However, once the photo was used in the documentary, he believed it became an official usage and therefore, he is entitled to usage fees. Heavey told The Courier that “it’s pretty obvious that it’s my image and I’m surprised they didn’t just go, ‘yep,’ and offer a licensing fee,”
Heavey believes that he has a strong claim against Netflix. He has retained a lawyer and is working with them to plan his next course of action. Netflix’s in-house counsel, Jarin Jackson, has not given any further comments regarding the matter.