Independent sports photographers can press ahead with copyright and fraud allegations against the National Football League and the Associated Press after a federal appeals court stood by a panel decision to revive them.
The NFL and the AP had asked the entire Second Circuit to reconsider its panel decision to reinstate the photographers’ lawsuit. The panel had reversed a lower court ruling that the photographer’s contracts with the AP allowed the AP to let the NFL use their work for free.
The decision limits the NFL’s and AP’s options if they want to avoid discovery in a case alleging breach of good faith and unfair dealing, among other claims. They would have to settle with the photographers or convince the U.S. Supreme Court to reverse the Second Circuit.
The U.S. District Court for the Southern District of New York had dismissed the lawsuit, finding the photographers’ contracts with the AP broad enough to permit the AP’s complementary licensing to the NFL. The Second Circuit said the AP couldn’t retroactively let the NFL use the images or grant complementary licenses, and that too many questions remained to toss the case.
The photographers credentialed to take pictures at NFL events entered into agreements allowing them individually to retain copyright interest in the images and make money licensing them. The AP served as a stock photo agency to license the images and collect royalties for the photographers.
The photographers learned that the AP had granted “complimentary” or “non-royalty bearing” licenses to the NFL without paying them royalties. They sued the NFL, all 32 of its teams, the AP, and Getty Images (US) Inc., which served the same function as the AP before 2009.
The full Second Circuit upheld the district court’s dismissal of an antitrust claim.
The McCulloch Law Firm PLLC represented the photographers. Skadden Arps Slate Meagher & Flom represented the NFL. DLA Piper represented AP.
The case is Spinelli v. National Football League, 2d Cir., No. 17-673, 10/29/18
To contact the reporter on this story: Kyle Jahner in Washington at kjahner@bloomberglaw.com
To contact the editor responsible for this story: Rebecca Baker at rbaker@bloomberglaw.com
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