Federal Court Reinstates Photographers’ Copyright Claim Against AP, NFL

Posted by on Wednesday September 12, 2018 | Copyright/Legal

A federal appeals court in New York has reinstated a long-disputed copyright infringement claim against Associated Press (AP) and the National Football League (NFL), after the seven photographers involved in the case argued that a lower court erred in dismissing their claims.

The photographers—all of whom covered NFL games and other events as AP freelancers—filed suit in 2013 over widespread use of their images in NFL ads, products and promotions without any compensation. The alleged infringements date back to 2009.

According to the original lawsuit, photographers “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.” (Getty, which had an exclusive contract with the NFL until 2009, is no longer involved in the case.)

The photographers argued that free use of their images was not allowed under the terms of their contributor contracts with AP. But AP and the NFL dispute the photographers’ interpretation of those contributor contracts, arguing that they didn’t bar the AP from granting complimentary licenses to the NFL.

A federal district court in New York dismissed all the claims in 2017. The appeals court has restored most of the photographers’ claims, and sent the case back to the lower court for trial.

The photographer-plaintiffs are Paul Spinelli, Paul Jasienski, David Stluka, Thomas E. Witte, David Drapkin, George Newman Lowrance and Scott Boehm.

AP and NFL are not disputing that the photographers own copyrights to their images. Instead, the dispute is over the language of various contracts between the parties, and what those contracts permit—or don’t permit.

Under a 2009 agreement with the NFL, AP succeeded Getty as the exclusive agent for and distributor of commercial licenses for photographs that contain NFL intellectual property. As part of that agreement, AP granted the NFL a broad complimentary license for “AP-Owned Photos”—but not for photos owned by AP contributors.

The NFL used the contributors’ photos anyway without compensation for the uses.

Under a renewed agreement signed between the AP and the NFL in 2012, AP extended the complimentary license to photos owned by contributors.

In its agreement with contributors, AP had broad rights to license their images to the NFL in exchange for usage fees. When the photographers discovered in 2012 that they weren’t receiving fees for the NFL’s extensive uses of their photographs, they complained to AP. By that time, the wire service had already signed its 2012 agreement with the NFL permitting complimentary uses of the contributors’ photos. AP asked the photographers to sign amendments to their contracts permitting those complimentary uses retroactively. The photographers refused, but the NFL continued to use their photographs without paying fees.

When the photographers sued for infringement in 2013, the defendants (NFL and AP) argued that their 2012 agreement gave the NFL complimentary use of the plaintiffs photographs retroactively. The lower court agreed. The appeals court did not.

“Before the 2012 AP-NFL agreement was executed, Plaintiffs had the right to sue the NFL for copyright infringement,” the appeals court said, adding that the retroactive license would have “distinguished that right. Doing so is impermissible.”

Whether contributors can claim copyright infringement for uses of their photos by the NFL after 2012 is less clear. That’s because when the various contracts are read together, the scope of rights ultimately granted is ambiguous, according to the appeals court’s analysis. But the appeals court concluded that the photographers “have plausibly alleged that AP’s complimentary license to the NFL was not permitted by the contributor agreements.”

For that reason, the appeals court reversed the lower court’s decision to dismiss the case, and sent it back to the lower court for for trial on all the photographers copyright claims.

Related:
NFL, Getty and AP Hit with Copyright Infringement Lawsuit

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