By Kaihao (Terrence) Zhang[1]
On January 11, 2024, Allen Kee, a professional sports photographer, filed a 20-page copyright infringement suit against multiple entities and individuals under the Copyright Act of 1976, 17 U.S.C. §§ 101, et seq., and 28 U.S.C. § 1338(a) (p.5). The defendants of this suit include the Detroit Lions, Timeless Creations, Inc. (TCI), NFL Properties, NFL Enterprises, The Highland Mint, Fanatics, Getty Images, McFarlane, Dick’s Sporting Goods, VC Collectibles on eBay, and several anonymous individuals. Kee alleged that the bronze statue of retired running back Barry Sanders, which was recently unveiled by the Detroit Lions, was created based on the Barry Sanders photograph he took during an NFL game between the Detroit Lions and the Pittsburgh Steelers on September 3, 1995, without Kee’s authorization or permission (p.8). According to widely circulated reports, the Sanders statue was created by a company called TCI and commissioned by the Detroit Lions. On September 24, 2023, about one week after the Sanders statue was unveiled, the Detroit Lions released a video about the creation of the Sanders statue on its official YouTube channel with the title of “Sculpting Barry: The Making of Lions Legend Barry Sanders’ Statue.” In this video, a copy of Kee’s photo can be seen hanging in the TCI studio, and one of the sculptors claimed they were intentionally re-creating Kee’s photograph in the Sanders statue (pp.12-13).
According to the plaintiff, Kee registered the copyright of the photograph with the United States Copyright Office, as the solo author of the photograph of Barry Sanders (pp.8-9). Kee worked mainly as a freelance sports photographer in his career and owns copyrights of his photographs. Kee was not working as an employee of any organization or under any “work for hire” agreement at the time he took the photograph of Barry Sanders in 1995 (p.8). The author has allegedly never sold or granted the exclusive license of the photograph to any individual or organization, including the Detroit Lions and TCI but sublicensed the photograph to NFL Photos, which was a licensing agency owned by the NFL in 1995 (pp.8-10). Kee did not grant any license of the photograph to the NFL or its associated organizations except for NFL Photos. In 2004, NFL Photos ceased operations, but the NFL did not return Kee’s photograph as they allegedly agreed to do so (p.9).
Getty Images is also one of the entities sued by Kee. According to the plaintiff, Kee granted licensing of his works to WireImage, a licensing agency owned by MediaVast, Inc. from 2004 to 2007 (p.10). Only a selected amount of Kee’s photographs was licensed to WireImage at this time period, and the photograph of Barry Sanders was not included (p.10). MediaVast and WireImage were acquired by Getty Images in 2007 for over $200 million dollars (p.10). Kee had an agreement with Getty Images after the acquisition, which was about relicensing the works he submitted to WireImage. No new photograph was licensed to Getty Images in this agreement. However, Getty Images acquired a copy of Kee’s photograph of Barry Sanders and sold licenses and copies of the photograph to customers without Kee’s consent and authorization (p.11).
Other entities and individuals in the case were sued for secondary infringement of Kee’s copyright of the photograph. The Highland Mint created a memorabilia product of the Sanders statue by using two copies of Kee’s photographs of Sanders, one unaltered copy and one edited copy, without the author’s permission (p.14). The Highland Mint’s product was created under a contract with the Detroit Lions through NFL Properties and is identified as an official licensed product of the NFL. The product was allegedly offered for sale on the websites of Dick’s Sporting Goods, Fanatics, and the NFL Shop. Furthermore, McFarlane, a toy manufacturing company, created a toy featuring the photo of Barry Sanders under a contract with NFL Properties (pp.15-16). The toy is offered for sale on the website of McFarlane. Also, an autographed copy of Kee’s photo was sold by VC Collectibles on eBay without Kee’s authorization (p.16).
Kee alleged the Detroit Lions and TCI are liable for copyright infringement for copying, using, editing, and distributing Kee’s photograph, of which he owns the exclusive copyright (p.19). The organizations, such as Highland Mint, McFarlane, and Dick’s Sporting Goods that did not directly copy and distribute the photograph are responsible for secondary infringement (p.18). All of these entities benefited financially from the infringement. Kee is seeking to recover actual damages, profits from the unauthorized uses of the photograph, and any damages for the lack of credit and attribution (p.19). Secondly, he is also seeking a permanent injunction against the defendants to prohibit those entities and individuals from copying, using and distributing the photograph, and disposing all copies of the photograph in possession of the defendants (p.19).
As of January 31, 2024, no response has been filed by the defendants in the case. In an era of frequent statue construction near sports arenas, this case deserves attention because any resulting photographer-friendly precedent would put leagues and teams on notice about potential copyright infringement on a product created decades ago.
Reference
Kee v. The Detroit Lions, Inc. et al., 1:24-cv-00223, United States District Court for the Southern District of New York, January 11, 2024.
[1] Kaihao (Terrence) Zhang, a Doctoral Student of the Department of Sport Management at Florida State University
