On April 12, 2021, Florida-based creative agency, Creative Klick Agency LLC, filed a lawsuit in the Southern District of Florida against Dan Bilzerian and his spirits company, Ignite Spirits Inc. and related companies. Creative Klick alleged that the spirits brand used its photos on various social media accounts, including those belonging to Bilzerian, and on Ignite’s websites, without the agency’s permission.

The complaint alleges that Ignite was first introduced to Creative Klick when the brand sought to hire the agency (through another agency) to produce social media marketing materials and related content, including high-end photography. The complaint further alleges that Ignite informed the agency that to help sway the brand to hire the agency, the agency should produce some sample images of one of Ignite’s vodka bottles. Creative Klick produced such a photoshoot and sent the photographs, which are registered with the U.S. Copyright Office, to the prospective client. Creative Klick argues that Ignite then re-appropriated, reproduced, and distributed copies of the photographs, and created derivative works thereof for use on both Bilzerian’s and Ignite Spirits’s social media pages without any license, permission, or approval by Creative Klick.

The complaint accuses Ignite of willful and intentional copyright infringement, contributory copyright infringement, and vicarious copyright infringement. Creative Klick seeks an order from the court requiring Ignite and its affiliates (i) to stop using copies of the photos, and (ii) to pay the agency actual and statutory damages and any profit attributable to the alleged infringement, including interest, attorney fees, and costs.

Takeaway: Photographs and other creative materials submitted as part of a pitch are subject to copyright protection. The sending of materials for presentation to a prospective client does not, in and of itself, transfer an ownership interest or license to the prospective client. Set forth how pitch materials will be treated at the outset of a relationship. This can be accomplished in a non-disclosure agreement.