Category: Intellectual Property

Second Circuit Holds Independent Photographers’ Copyright Infringement Suit Can Proceed Against the NFL and Associated Press

Case Name:  Spinelli v. National Football League – Second Circuit

Date of Opinion:  September 11, 2018

Opinion By: Judge Lynch


Beginning in 2009, the Associated Press (AP) has been the exclusive licensing agent for National Football League (NFL) league and team intellectual property, including photographs containing NFL logos and other intellectual property. Under the original 2009 licensing agreement, AP had broad authority to distribute commercial licenses for photographs containing NFL intellectual property. Plaintiffs, seven independent photographers, entered into “contributor agreements” with the AP to obtain access to NFL events and licenses for the intellectual property contained in photographs taken at NFL events. In essence, under the contributor agreements, the photographers retained ownership of the photographs and the right to sue for infringement, but granted the AP broad license to use and license the use of the photographs. In return, plaintiffs were to be paid royalties for certain uses.

The 2009 licensing agreement between the AP and the NFL included a broad complimentary license to the NFL for “AP-Owned Photos,” but did not grant to the NFL the same broad license for photographs owned by non-AP contributing photographers. A renewed licensing agreement executed in 2012, however, purported to amend the complimentary license granted to the NFL to include the right “to make Editorial use and/or marketing and charitable uses of . . . ‘AP-Contributor’ Photos’” in addition to AP-Owned Photos.

Thereafter, in October 2013, the seven non-AP contributing sports photographers brought suit in the United States District Court for the Southern District of New York against the AP, the NFL and NFL-affiliated teams, and Replay Photos, which sells NFL-related photographs online. Plaintiffs alleged that the NFL and Replay Photos had been extensively using their photographs in promotional and commercial materials without compensating them, and that the AP unlawfully granted the NFL a complimentary license with respect to photographs owned by them in the 2012 renewed licensing agreement without their knowledge or consent. After the defendants successfully moved to dismiss, plaintiffs amended their complaint asserting claims for copyright infringement, breach of implied covenant of faith and fair dealing, unconscionability, fraud, and Sherman Act violations. Defendants again moved to dismiss and the District Court ultimately dismissed all of the claims.

On plaintiffs’ appeal, the United States Court of Appeals for the Second Circuit vacated the dismissal of several of the claims. Continue reading