By Celia Ampel, From Daily Business Review

A mahimahi’s blue spots may seem like a small detail—but they could be worth thousands of dollars to the parties in a federal lawsuit.

Port St. Lucie marine photographer Tony Ludovico is suing an apparel company that allegedly lifted his copyrighted “Portrait of a Bull” image without licensing it.

Ludovico claims California-based Pelagic sells 29 items that infringe on his copyright, all part of its Dorado line, which includes board shorts, bikinis and hats.

The clothes show blue spots on a green-and-yellow background in patterns the Oct. 2 complaint alleges were digitally copied from “Portrait of a Bull,” a photo of a male mahimahi Ludovico took during a 2006 freediving photography expedition in El Salvador.

“The computer systems all came back that there were at least 20 portions of copying from ‘Portrait of a Bull,’ ” said Robert H. Thornburg of Allen, Dyer, Doppelt, Milbrath & Gilchrist of Miami, who is representing Ludovico.

Pelagic did not respond to a request for comment by deadline. The case docket does not yet list attorneys for the company.

The complaint comes after a seven-year business relationship between Ludovico and Pelagic. The photographer made an agreement with the company that it could use his images as long as each one was individually licensed so he could receive royalties, according to the complaint.

The company uses his photos for 24 other items Ludovico said are properly licensed as part of its Ocean Conservancy Project.

“Their relationship was going OK, and he was receiving some royalties from the sale of the Tony Ludovico line of clothing but never any notice of the use of ‘Portrait of a Bull,’ ” said Thornburg’s co-counsel, Gregory Weiss of Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss in West Palm Beach.

Ludovico had seen the Dorado apparel before but didn’t realize it could be based on his photo until someone pointed it out, Weiss said. A fan approached Ludovico at a boat show to show him his Pelagic board shorts and said, “Oh, Mr. Ludovico, I love ‘Portrait of a Bull.’ ”

“For the first time, he said, ‘Oh, I never thought of that. It does look similar,’ ” Weiss said.

Now, Ludovico is seeking damages for five years of sales, his lawyers said. They also said “Portrait of a Bull” has been used in Pelagic advertising and social media.

“Pelagic has really tried to align itself to create the image that Mr. Ludovico is almost an in-house artist for them,” Thornburg said.

He said it’s too early to know how much Ludovico’s damages might be since the attorneys haven’t examined Pelagic’s sales records.

“Anything at this point would be pure guesstimate,” Thornburg said.

The case was assigned to U.S. District Judge Donald M. Middlebrooks in West Palm Beach.

IMAGE: South Florida marine photographer Tony Ludovico is suing an apparel company for selling board shorts and other items using his copyrighted image Portrait of a Bull. Tony Ludovico

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