1 November 2018Copyright

Second Circuit delivers blow to NFL and AP in copyright spat

Seven sports photographers have been given another chance to pursue copyright allegations against the National Football League (NFL).

The NFL had asked that the US Court of Appeals for the Second Circuit hold an en banc rehearing of the matter, which was decided against the NFL last month, but the court denied the request on Monday, October 29.

In 2013, the sports photographers filed a complaint (pdf) against the NFL, all 32 NFL teams, the Associated Press (AP), and image companies Replay Photos and Getty Images at the US District Court for the Southern District of New York.

The photographers had granted AP a licence to use sporting event photos, but AP had allegedly exceeded the scope of the agreement by granting “complimentary” (non-royalty bearing) sub-licences to the NFL and Replay, the operator of AP’s NFL photo store.

In addition, they accused the NFL and the other defendants of breach of good faith and antitrust violations.

AP and the NFL did not deny that the photographers owned the copyright in the images, but they disputed the contractual language of the agreements relied on by the photographers.

In 2017, the New York court granted the defendants’ motion to dismiss all claims.

The photographers appealed against the ruling and, last month, the Second Circuit granted most of the appeal (with the exception of the antitrust claims, which the court agreed should have been dismissed).

The Second Circuit said that AP was not able to grant complimentary licences to the NFL and also that AP could not grant the NFL a retroactive licence to use the images between 2009 and 2012.

In 2012, AP and the NFL signed an agreement which expressly permitted complimentary uses of the images, and they had argued that this agreement applied retroactively.

However, the Second Circuit said that the photographers had the right to sue the NFL for infringements that occurred during that period, and it is “impermissible” for AP to grant a retroactive licence which would distinguish that right.

The Second Circuit remanded the matter back to the New York court for further proceedings.

Following the decision, the NFL asked the Second Circuit to hold an en banc rehearing of the matter, but that request has now been denied.

As noted by Bloomberg: “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 US Supreme Court to reverse the Second Circuit.”

The NFL and its players are no strangers to IP disputes.

Last month, for example, professional athlete association the World Sport Alumni accused the NFL of using the images and likeness of sports stars without permission. And in July, the Second Circuit denied an immediate appeal in a dispute involving NFL star Tom Brady, Twitter, and news outlets which had embedded a tweet containing Brady’s image into articles.

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