Rights to image of Philly’s official pope portrait in question

The World Meeting of Families and the Philadelphia Archdiocese are marketing Pope Francis’ visit to Philadelphia with an array of merchandise. You can get posters, T-shirts, coffee cups, and paperweights emblazoned with an image of the pope blowing a kiss, as painted by Washington Crossing artist Perry Milou.

He licensed his image to the World Meeting of Families and the Philadelphia Archdiocese. But Milou might not own that image destined for hundreds of thousands of keepsakes.

In 2013, photojournalist Franco Origlia snapped the picture of the pope blowing a kiss during a  ceremony in Vatican City. That photograph is licensed by Getty Images, which recently called Milou out.

Under “fair use” law, it can be argued that an artist is allowed to appropriate another’s work to create something wholly new. But Milou’s lawyer is not making that argument.

Kurt Schroder, an entertainment lawyer, said by the time he could make a legal case for fair use, the World Meeting of Families would be over — along with all of its merchandising opportunities.

“Unfortunately at times, or fortunately depending on how you look at it, the law has gray areas,” said Schroder, whose practice is based in Richmond, Virginia. “When you fall into those gray areas, then look at the other circumstances — some situations call just to be resolved, without pointing the finger and trying to figure out who did what. This is certainly one of those circumstances.”

Schroder said he is in negotiations with Getty Images to find a quick resolution out of court. A representative of Getty Images was not available for comment.

A spokesman for the Philadelphia Archdiocese, who said Milou had assured them when he signed the merchandising contract that licensing rights had been secured, would not comment on the sales of that merchandise.

A similar case arose in 2008 when graffiti artist Shepard Fairey appropriated someone else’s photograph to make the Barack Obama “Hope” poster, which became iconic during his first presidential campaign. That fair use argument also never made it to a judge, as Fairey settled out of court for more than a million dollars.