MANHATTAN (CN) – In a federal lawsuit, seven professional photographers accuse the NFL of “rampant, willful and continued” copyright violations, and accuse Getty Images and The Associated Press of “illegal and unethical misconduct which permitted, encouraged and contributed to” it.
Lead plaintiff Paul Spinelli sued the NFL and its affiliates, Replay Photos, Getty Images and The Associated Press, in Federal Court. Spinelli does business as Spin Photos, of Long Beach, Calif., and was a director of the NFL’s dissolved Photographic Services division.
The other six plaintiffs are from six other states.
The lawsuit involves only photos that the photographers shot “on spec” – meaning on speculation: to be paid per photo, not by the day or hour – and the library of “literally hundred of thousands” of such NFL-related photos.
The photographers claim they retained copyright in the photos they shot on spec, but the licensing defendants and the NFL ignored that, to reuse their work for ads, news, promotions, products, and to boost the NFL’s image and profits.
“Although plaintiffs license the photos that they shot ‘on spec’ through third-party licensing agents (formerly NFL Photos and then Getty Images and currently AP), they never transferred their copyrights in these photos to their agents,” the lawsuit states. “Rather, as plaintiffs’ contributor agreements expressly provided, they retained sole and exclusive ownership of all copyrights in these photos.
“This action concerns the NFL defendants’ rampant, willful, and continued misuse of photographs to which plaintiffs own copyrights. This action also involves Getty Images’ and AP’s illegal and unethical misconduct which permitted, encouraged, and contributed to the NFL defendants’ infringements.”
The NFL formed its Photographic Services division, or NFL Photos, in 1965.
“Through NFL Photos, the NFL actively solicited photography from and hired freelance photographers in order to expand the NFL’s brand,” the photographers say in the complaint.
The better-known NFL Films division generally owns the copyrights to video footage. (Hence the statement made at the end of every televised NFL game, that rebroadcast is prohibited without the express consent of the NFL.)
But “the NFL typically does not own copyrights in the still photos that it uses because the vast majority of photos are created by freelance photographers working ‘on spec,'” according to the complaint.
Beginning in 2003, the NFL began relying more heavily on licensing arrangement with stock photography agencies, including Getty Images.
“(I)n 2007, Getty Images obtained exclusive commercial licensing rights for NFL-related photos,” the complaint states. “Getty Images retained the exclusive NFL licensing rights until 2009.”
All seven plaintiffs say that at various times in these years, they entered into licensing agreements with Getty Images, for their NFL photos and other photos.
The complaint states: “In or about 2009, the NFL accepted new bids for the exclusive right to grant commercial licenses related to NFL-related photographic content. The NFL eventually selected AP’s bid and the NFL and AP subsequently entered into an exclusive licensing agreement.
“As a direct consequence of the NFL’s decision to grant an exclusive license to AP, plaintiffs lost the ability to sell higher-value commercial licenses, as opposed to editorial licenses, through Getty Images. Thus, if plaintiffs wished to continue offering commercial licenses for their NFL content, they were forced to transition their NFL collections to AP.
“This option presented difficulties, however, because plaintiffs also own the copyrights to and license other sports-related content, including photographs of Major League Baseball (‘MLB’) and National Collegiate Athletic Association (‘NCAA’) games and events, and Getty Images had exclusive licensing deals and/or significant licensing partnerships with these entities, including MLB.
“In a blatant attempt to exploit this dilemma, Getty Images threatened to remove plaintiffs’ other sports content from its distribution networks and/or terminate its relationship with plaintiffs entirely if they did not agree to continue licensing their NFL content through Getty Images even after its commercial licensing deal with the NFL expired. Getty Images also made clear that it would not ‘welcome back’ any contributors who moved their NFL content to AP should Getty Images ever regain the rights to license NFL content in the future.
“Because certain plaintiffs had significant non-NFL content at Getty Images, including significant MLB and NCAA photo collections, Getty Images’ position forced plaintiffs to make an impossible choice between losing commercial licensing opportunities for their NFL content by not going to AP or giving up commercial licensing opportunities for their non-NFL content by leaving Getty Images.”
Five plaintiffs – Spinelli, Paul Jasienski, David Stluka, Thomas E. Witte, and David Drapkin – “risked Getty Images’ wrath and moved their NFL content to AP” in 2009, the photographers say.
Two of them – George Newman Lowrance and Scott Boehm – “chose not to risk the loss of other licensing opportunities and thus kept their NFL content at Getty Images. As result, plaintiffs Lowrance and Boehm lost significant and valuable licensing opportunities for their literally tens of thousands of NFL-related photos by leaving those images at Getty Images,” the complaint states. “Although Getty Images ultimately sub-licensed Lowrance’s and Boehm’s collections through AP, the number of sales of was significantly diminished and Plaintiffs were damaged because both agencies withheld their royalty rates.
“Eventually, all plaintiffs ended their relationships with Getty Images and entered into agreements to license their NFL content through AP. As a result, plaintiffs have lost significant revenue due to the loss of licensing opportunities for their non-NFL content that resulted from the termination of their relationships with Getty Images.”
Both Getty and AP licensed the plaintiffs’ photos on a “rights managed” bases – i.e., granting only limited rights to the customer/licensee, the photographers say. A license granting more rights cost more than a license granting fewer rights.
However, the photographer say: “Despite the fundamental obligations to license plaintiffs’ works according to these principles inherent in the rights-managed licensing model, including to track usage rights and also charge appropriate market value for each license, plaintiffs recently discovered that both Getty Images and AP granted the NFL nearly unfettered access to plaintiffs’ photo collections and, either expressly or by inaction, allowed the NFL to make free or ‘complimentary’ use of plaintiffs’ copyrighted photos. In doing so, Getty Images and AP not only failed to charge the NFL appropriate market value for licenses to use thousands of plaintiffs’ photos, they both also failed to monitor, track, or responsibly manage the NFL’s use of plaintiffs’ photos. The failure of Getty Images and AP to track and monitor the NFL’s use of plaintiffs’ photos severely undermines the future value of their works.
“As a result of this misconduct by AP and Getty Images, the NFL was able to copy, display, publish, and even sublicense, including to defendant Replay Photos, literally thousands of plaintiffs’ copyrighted works without ever paying any compensation to plaintiffs and without ever reporting the uses it has made of plaintiffs’ works.”
The photographers seek damages for copyright infringement from all the defendants, and from the licensers, damages for vicarious and contributory copyright infringement, breach of contract and breach of fiduciary duty. They also want the NFL and Replay Photos enjoined from copying, displaying, distributing or selling their work, and delivery of the infringing photos, and costs.
They are represented by Danial Nelson with Nelson & McCulloch.
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